As per the case facts, an accused appellant was convicted under Section 302 IPC and sentenced to death by the trial court, which was confirmed by the High Court. The ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 6465 OF 2022
Ramanand @ Nandlal Bharti …Appellant
Versus
State of Uttar Pradesh …Respondent
J U D G M E N T
J.B. PARDIWALA, J.
1.Mark Twain, the great American writer and philosopher, once
said:
"It is like this, take a word, split it up into letters, the letters,
may individually mean nothing but when they are
combined they will form a word pregnant with meaning.
That is the way how you have to consider the circumstantial
evidence. You have to take all the circumstances together
and judge for yourself whether the prosecution have
established their case.”
2. These appeals, by special leave, arise out of the judgment and
order dated 09.07.2021 passed by the High Court of Judicature at
Allahabad, Bench at Lucknow confirming the death sentence awarded
to the accused appellant herein.
3.The accused appellant has been held guilty of the offence
punishable under Section 302 of the Indian Penal Code (for short, “the
IPC”). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced the
accused appellant to death under Section 302 of the IPC and pay fine
of Rs. 20,000/ and in default of payment of fine to undergo further
rigorous imprisonment for one year. While the Sessions Judge,
Lakhimpur Kheri made a reference to the High Court for confirmation
of death sentence under Section 366 of the Code of Criminal
Procedure (for short, “the CrPC”), the accused appellant preferred
Criminal Appeal No. 1959 of 2016 putting in issue his conviction and
sentence. The High Court dismissed the Criminal Appeal No. 1959 of
2016 filed by the accused appellant thereby confirming the death
reference under Section 366 of the CrPC.
4.In such circumstances referred to above, the accused appellant is
here before this Court with the present appeals.
CASE OF THE PROSECUTION
5.According to the case of the prosecution, the accused appellant
Ramanand was married to Sangeeta (deceased) for the past 12 years
before the incident in question. In the wedlock, five children were born
– one son and four daughters, by name Gaurav Ambedkar aged 10
years, Tulsi aged 7 years, Lakshmi aged 5 years, Kajal aged 3 years
and Guddi aged one and a half month.
6. On the fateful night of the incident i.e. the intervening night
between 21
st
& 22
nd
of January, 2010 while the wife and four children
were sleeping in the house situated at the village Basdhiya, the
accused appellant is said to have mercilessly clobbered all the five to
death with a sharp cutting weapon called Banka. At the relevant point
of time, the son of the accused appellant was not residing with the
family. The son aged 10 years at the time of incident was residing at a
different village with one police constable. The motive behind the
crime as put forward by the prosecution is the extra marital affair of
the accused appellant with one married lady by name Manju.
According to the prosecution, the accused appellant desperately
wanted to marry Manju. Further, the wife of the accused appellant
namely, Sangeeta (deceased) was highly opposed to the relationship of
her husband with Manju. In such circumstances, it is the case of the
prosecution that the accused appellant decided to terminate not only
his wife Sangeeta but also his four minor daughters.
7.It all started with the First Information Report (FIR) lodged by the
PW1, Shambhu Raidas, who happens to be the brotherinlaw of the
accused appellant (husband of the accused appellant’s sister). The
FIR came to be lodged by the PW1, Shambhu Raidas at the
Dhaurhara Police Station, District Lakhimpur Kheri on 22.01.2010 at
9:45 A.M. The FIR (Ext. 40) reads thus:
“To, Station House Officer, KotwaliDhaurahara, District
Kheri. Sir, It is submitted that the applicant Shambhu
Raidas son of Late Shri Shyam Lal Raidas is the resident of
village – Naamdar Purwa, Police Station – Kotwali
Dhaurahara, District Lakhimpur Kheri. Today on
22.01.2010 when I was present at my home then at about
6.30 o’clock in the morning my saala (brotherinlaw)
Ramanand Raidas son of Gobre Raidas resident of
Naamdar Purwa, HamletAmethi, Police Station
Dhaurahara, Lakhimpur Kheri came and told that, “Last
night I was sleeping with my wife & children. Then at
about 1.00 o’clock in the night someone knocked at
my door, I woke up and asked who was there but none
replied. Then I went to the roof of my house and saw
that four persons were standing outside the house. I
switched on the torch. I saw that that one person who
was resident of village Basadiha, Police Station
Ishanaga and known to Ramanand fired on me by
gun; I escaped and jumped and came down. Then one
miscreant hit on my head by the butt of a gun. I ran
away and hid in the fields and saw that the
miscreants climbed into my home. I saw, smoke
coming out of my home. Then I ran to Behnan Purwa
and told about the incident at Crusher of Khaliq and
to the people at Ramnagar Lahbadi but none came
ahead. I came running here”. Then I alongwith my
nephew Pratap reached the house of Ramanand and saw
that the wife of Ramanand namely Sangita, aged about 35
years, daughters Tulsi aged about 7 years, Laxmi aged
about 5 years, Kajal aged about 3 years and a girl child of
about 1
½ month had been killed and the dead bodies were
burning. Then I and Pratap started extinguishing the fire by
pouring water with the aid of a bucket. Behind us
Ramanand too came to his house & home, sat in the
courtyard and started warming himself in front of the fire
(Aag Taapne laga). On seeing this, both of us scolded him
that, “Your wifedaughters have been killed and you are
sitting in the courtyard and warming yourself before fire”.
On this Ramanand got annoyed and went outside the
house. The dead bodies are lying at the spot. I came to
inform. Lodge the case and take legal action.”
Thumb Impression (T.I.) Shambhu Raidas, Applicant,
Shambhu Raidas son of Late Shyam Lal Raidas, Resident of
village Naamdar Purwa, Hamlet Amethi, Police Station
Dhaurahara, District Khera. Date 22.01.2010.”
[Emphasis supplied]
8.Thus, it is the case of the prosecution that after the incident the
accused appellant went straight to the house of the PW1, Shambhu
Raidas at about 6:30 in the morning. The accused appellant is said to
have informed the PW1, Shambhu Raidas as to what had transpired
at around 1 o’clock in the night. PW1, Shambhu Raidas thought fit to
inform the police and accordingly lodged the FIR as aforesaid against
four unidentified persons.
9.Upon registration of the FIR, the police started the investigation.
The investigating officer carried out the inquest proceedings of all the
five deceased persons. The dead bodies were sent to the Civil Hospital
for post mortem. Thereafter, the investigating officer prepared a site
plan of the crime scene (Ext. 6). The post mortem reports revealed that
all the five deceased had suffered incised wounds mostly on the head
and the neck region. The burn injuries were certified to be post
mortem, whereas the incised wounds were certified as ante mortem
injuries. The cause of death assigned in all the post mortem reports is
shock and haemorrhage as a result of ante mortem head injuries.
10.The accused appellant is shown to have been arrested by the
investigating officer on 24
th
of January, 2010. After the arrest and
while the accused appellant was in custody, he is said to have made a
voluntary statement that he would show the place where he had
hidden the weapon of offence i.e. Banka and his blood stained clothes.
Accordingly, the discovery panchnama was drawn of the weapon of
offence (Ext. 5). It appears that in the course of investigation, the
investigating officer recorded the statements of PW3, Baburam Hans
son of Ramcharan and PW4, Ram Kumar son of Paanchoo before
whom the accused appellant is said to have made extra judicial
confession. The investigating officer also recorded the statement of the
PW1, Shambhu Raidas, the first informant and PW2, Chhatrajpal
Raidas (brother of the deceased Sangeeta).
11.At the end of the investigation, charge sheet came to be filed for
the offence of murder punishable under Section 302 of the IPC. The
Magistrate committed the case to the Court of Sessions Judge,
Lakhimpur Kheri under Section 209 of the CrPC. Upon committal, the
Sessions Trial No. 379 of 2010 came to be registered.
12.On 06.07.2010 the Additional District and Sessions Judge, Fast
Track Court, Lakhimpur Kheri framed charge against the accused
appellant. The statement of the accused appellant was recorded. The
appellant did not admit the charge and claimed to be tried.
13.The prosecution adduced the following oral evidence in support
of its case:
S. No. Oral Evidence – Witness
1. PW1 Shambhu Raidas
2. PW2 Chhatrapal Raidas
3. PW3 Babu Ram Hans
4. PW4 Ram Kumar
5. PW5 Dr. A.K. Sharma
6. PW6 S.I. Uma Shankar Mishra
7. PW7 Inspector Yogendra Singh
8. PW8 Dr. S.P. Singh
9. PW9 Dr. Ankit Kumar Singh
10. PW10 H.M. Dhani Ram Verma
14.The prosecution also adduced the following documentary
evidence:
S.No. Documentary Evidence
1. Tahreer /Written Complaint
[Ex. Ka1]
2. Postmortem report of deceased Laxmi
[Ex. Ka2]
3. Postmortem report of deceased Kajal
[Ex. Ka3]
4. Postmortem report of deceased Chhoti @ Guddi
[Ex. Ka4]
5. Discovery memorandum of murder weapon and
clothes
[Ex. Ka5]
6. Site plan of crime scene
[Ex. Ka6]
7. Site plan of discovery of murder weapon
[Ex. Ka7]
8. Charge sheet
[Ex. Ka8]
9. Seizure memo of ashmixed and plain soil
[Ex. Ka9]
10. Inquest Report of deceased Sangeeta Devi
[Ex. Ka10]
11. Photo lash of deceased Sangeeta
[Ex. Ka11]
12. Police Paper No. 13 of deceased Sangeeta
[Ex. Ka12]
13. Specimen seal regarding deceased Sangeeta
[Ex. Ka13]
14. Letter to Reserve Inspector regarding deceased
Sangeeta
[Ex. Ka14]
15. Letter to C.M.O. regarding deceased Sangeeta
[Ex. Ka15]
16. Inquest Report of deceased Km. Tulsi
[Ex. Ka16]
17. Photo lash of deceased Km. Tulsi
[Ex. Ka17]
18. Specimen seal regarding deceased Km. Tulsi
[Ex. Ka18]
19. Letter to Reserve Inspector regarding deceased
Km. Tulsi
[Ex. Ka19]
20. Letter to C.M.O. regarding deceased Km. Tulsi
[Ex. Ka20]
21. Police Paper No. 13 of deceased Km. Tulsi
[Ex. Ka21]
22. Inquest Report of deceased Km. Kajal
[Ex. Ka22]
23. Police Paper No. 13 of deceased Km. Kajal
[Ex. Ka23]
24. Photo lash of deceased Km. Kajal
[Ex. Ka24]
25. Specimen seal regarding deceased Km. Kajal
[Ex. Ka25]
26. Letter to Reserve Inspector regarding deceased
Km. Kajal
[Ex. Ka26]
27. Letter to C.M.O. regarding deceased Km.Kajal
[Ex. Ka27]
28. Inquest Report of deceased Km. Laxmi [Ex. Ka
28]
29. Photo lash of deceased Km. Laxmi
[Ex. Ka29]
30. Police Paper No. 13 of deceased Km. Laxmi [Ex.
Ka30]
31. Specimen seal regarding deceased Km. Laxmi
[Ex. Ka31]
32. Letter to Reserve Inspector regarding deceased
Km. Laxmi
[Ex. Ka32]
33. Letter to C.M.O. regarding deceased Km. Laxmi
[Ex. Ka33]
34. Inquest Report of deceased Km. Chhoti
[Ex. Ka34]
35. Photo lash of deceased Km. Chhoti @ Guddi
[Ex. Ka35]
36. Police Paper No. 13 of deceased Km. Chhoti @
Guddi
[Ex. Ka36]
37. Specimen seal regarding deceased Km. Chhoti
@ Guddi
[Ex. Ka37]
38. Letter to Reserve Inspector regarding deceased
Km. Chhoti @ Guddi
[Ex. Ka38]
39. Letter to C.M.O. regarding deceased Km. Chhoti
@ Guddi
[Ex. Ka39]
40. Chik FIR
[Ex. Ka40]
41. Copy of general diary
[Ex. Ka41]
42. Postmortem report of deceased Tulsi
[Ex. Ka42]
43. Postmortem report of deceased Sangeeta
[Ex. Ka43]
44. Medical examination report of the accused [Ex.
Ka44]
15.After completion of the oral as well as documentary evidence, the
statements of the accused appellant under Section 313 of the CrPC
were recorded in which the accused appellant stated that he was
innocent and had been falsely implicated in the alleged crime. The
accused appellant took the defence that few individuals of a rival party
had committed the murder of his wife and daughters as Sangeeta
(deceased) was the sole eye witness to the murder of the brother of the
accused appellant. The trial against the accused persons who had
killed the brother of the accused appellant was pending at that point
of time. The rival party wanted to terminate Sangeeta and for that
reason, four individuals came to his house at about 1 o’clock in the
night of 22
nd
of January, 2010 and mercilessly killed all his five family
members and thereafter set the bodies on fire. The trial court
disbelieved such defence of the accused appellant.
16.At the conclusion of the trial, the Trial Judge convicted the
accused appellant for the offence under Section 302 of the IPC and
sentenced him to death relying upon the following incriminating
circumstances:
(i)Discovery of weapon of offence and bloodstained clothes at the
instance of the accused appellant.
(ii)Extra Judicial confession of the accused appellant before two
prosecution witnesses.
(iii)Strong motive to commit the crime.
(iv)False explanation at the instance of the accused appellant and
his unnatural conduct.
17.The appeal filed by the accused appellant in the High Court also
failed and was ordered to be dismissed.
18.Being dissatisfied, the accused appellant has come up with the
present appeals.
SUBMISSIONS ON BEHALF OF THE ACCUSED APPELLANT
19.Mr. S. Niranjan Reddy, the learned senior counsel appearing for
the accused appellant vehemently submitted that both, the trial court
and the High Court committed a serious error in holding the accused
appellant guilty of the offence of murder of his wife and four minor
daughters. He would submit that in the course of the trial the
prosecution failed to lead any credible evidence to connect the accused
appellant with the alleged crime. Mr. Reddy vehemently submitted
that both the Courts below ought not to have accepted the evidence of
PW3, Babu Ram Hans and PW4, Ram Kumar resply so as to believe
the extra judicial confession alleged to have been made by the accused
appellant before them. Mr. Reddy submitted that both the Courts
below should have discarded the evidence of discovery of weapon and
the bloodstained clothes as the prosecution has not been able to
prove the authorship of concealment. He would submit that in a case
of circumstantial evidence, the prosecution is required to establish the
continuity in the links of the chain of the circumstances so as to lead
to the only and inescapable conclusion of the accused being the
assailant, inconsistent or incompatible with the possibility of any
other hypothesis compatible with the innocence of the accused.
20.Mr. Reddy vociferously submitted that the PW3 and PW4 resply
are ‘got up’ witnesses. The evidence in the form of extra judicial
confession is nothing but a fabricated piece of evidence at the instance
of the investigating officer just with a view to bolster up the case of the
prosecution in the absence of any direct evidence. He would submit
that both these prosecution witnesses are absolutely unreliable.
21.Mr. Reddy submitted that in a case which is based on
circumstantial evidence, motive plays an important role. He would
submit that the prosecution has not been able to prove the motive
behind the crime. The extra marital affair of the accused appellant
with Manju and the desire of the accused appellant to marry Manju at
any cost has been put forward as the motive behind the crime.
However, there is no cogent and credible evidence in that regard. He
would submit that even otherwise an accused cannot be convicted and
sentenced to death only on the circumstance of motive.
22.Mr. Reddy would submit that the prosecution has not been able
to explain the injuries suffered by the accused in any manner. He
would submit that on the contrary, it is the accused who has been
able to explain how he suffered the injuries on his head and chest
while putting forward his defence before the High Court in his
statement recorded under Section 313 of the CrPC. Having noticed
that the accused appellant had suffered injuries on his head and was
bleeding, the accused appellant along with one police constable was
sent for medical examination at the District Hospital, District Kheri.
The accused appellant was taken to the hospital by a constable viz.
Brij Mohan Singh, Dhaurhara, District Kheri. The PW9, Dr. Ankit
Kumar Singh has issued a medical certificate Ext. 44 stating the
nature of the injuries noticed on the body of the accused appellant.
23.Mr. Reddy further submitted that once the extra judicial
confession alleged to have been made before the two prosecution
witnesses i.e. the PW3 and PW4 resply and the evidence of the
discovery of the weapon of offence is discarded and eschewed from
consideration, then nothing remains in the case of the prosecution.
24.Lastly, Mr. Reddy would submit that howsoever unnatural one
may find the conduct of the accused after the alleged crime, the same,
by itself, is not sufficient to convict the accused for an offence like
murder. In such circumstances referred to above, Mr. Reddy prayed
that there being merit in his appeals, those may be allowed. He prayed
that the order of conviction and death penalty be set aside and the
appellant may be acquitted of the charge of murder.
SUBMISSIONS ON BEHALF OF THE STATE
25.Mr. Adarsh Upadhyay, the learned counsel appearing for the
respondentState of Uttar Pradesh has on the other hand vehemently
opposed the appeals. He would submit that no error, not to speak of
any error of law, could be said to have been committed by the Courts
below in holding the accused appellant guilty of the offence of murder
and imposing death penalty upon him for the gruesome murder of five
of his family members. He would submit that there is no good reason
to disbelieve the evidence of PW3, Babu Ram Hans and PW4, Ram
Kumar resply before whom the accused appellant made the extra
judicial confession. He further submitted that there is no good reason
to even disbelieve the discovery of the weapon of offence at the
instance of the accused appellant. He would submit that over and
above the two incriminating circumstances in the form of extra judicial
confession and the discovery of weapon of offence, there was a strong
motive for the accused appellant to commit the crime.
26.Mr. Upadhyay vehemently submitted that the accused appellant
desperately wanted to get married to Manju and his wife Sangeeta
(deceased) was coming in his way. The accused appellant decided not
only to terminate his own wife but also mercilessly killed four of his
innocent minor daughters so that he may not have to take care of
them after marrying Manju. He would submit that it is one of the most
heinous and gruesome crimes committed by the accused appellant.
27.He further submitted that the prosecution is not obliged to
explain the injuries suffered by the accused appellant as those injuries
were found to be superfluous in nature. The prosecution is obliged to
explain the injuries suffered by an accused, if any, only if such
injuries are grievous in nature which may throw a considerable doubt
on the very genesis or the origin of the case of the prosecution. He
would submit that the defence of the accused appellant that four
unidentified persons were the assailants stands falsified by his own
unnatural conduct. Mr. Upadhyay would submit that the accused
appellant has not been able to explain in what circumstances the
smell of kerosene was coming from his clothes as deposed by the
witnesses and the doctor. He would argue that if out of fear he had
escaped from his house and ran away, then how he came in contact
with kerosene. He would submit that the case of the accused appellant
that one of the unidentified persons fired a shot from a firearm is also
falsified as no cartridge or any pellets were recovered from the place of
occurrence.
28.Mr. Upadhyay would submit that the scope of the present
appeals filed under Article 136 of the Constitution is very limited. It is
only in exceptional circumstances that this Court may disturb the
concurrent findings of guilt recorded by the trial court and High Court
respectively. He would submit that the view taken by the trial court
and the High Court is correct and in no manner the appreciation of
evidence could be termed as perverse.
29. In such circumstances referred to above, Mr. Upadhyay prays
that there being no merit in the appeals filed by the accused appellant,
those may be dismissed.
ORAL EVIDENCE ON RECORD
30. The PW1, Shambhu Raidas is the first informant. He happens to
be the brotherinlaw of the accused appellant i.e. husband of the
accused appellant’s sister. On 22.01.2010 while he was at his house,
the accused appellant is said to have visited him at 6:30 in the
morning and was informed that at 1 o’clock in the night four
unidentified persons knocked at his door. The accused appellant woke
up and enquired who was it. As no one replied, the accused appellant
went on the roof of his house and saw four persons standing outside
his house. The accused appellant is said to have seen those four
persons under the light of a torch. The accused appellant informed the
PW1 that one of the persons was from the village Basadiha. One
among the four persons fired at the accused appellant. The accused
appellant is said to have jumped from the roof top. At that point of
time, one of the four hit the accused appellant on his head with the
butt of the gun. The accused appellant thereafter ran away towards a
farm. The accused appellant is said to have witnessed those persons
entering into his house from a distance. After sometime, he noticed
smoke coming out of his house. The accused appellant went to
Behnanpurwa, Khalikpurwa and Lahki for help but he was not able to
procure any help. PW1 has deposed that after the accused appellant
narrated the entire incident, he himself along with one Pratap reached
the house of the accused appellant. The accused appellant also
accompanied the PW1, Shambhu Raidas and Pratap. When the PW
1 reached the house of the accused appellant, he saw the dead bodies
of Sangeeta and the four daughters burning. PW1 with the help of
Pratap started to douse the fire with water. PW1 has deposed that
while he himself and Pratap were trying to douse the fire, the accused
appellant took out his blood stained baniyaan (vest) and threw it in
the fire. The accused appellant thereafter started warming his body.
On seeing this, the PW1 got annoyed and told the accused appellant
that how could he sit beside the fire when his wife and children had
been killed. The PW1, Shambhu Raidas thereafter went to the
Dhaurhara Police Station and lodged the FIR. In the FIR, he named
four unidentified persons as the suspects. The PW1 has further
deposed about the illicit relationship of the accused appellant with
Manju. He has deposed that while the accused appellant was married
to Sangeeta, he decided to get married to Manju. The engagement
ceremony of Manju with accused appellant Ramanand was also
performed. However, before the accused appellant could get married to
Manju, he came to be arrested in connection with one offence
registered against him under Section 307 of the IPC. He has deposed
that Sangeeta (deceased) was highly opposed to the idea of her
husband Ramanand getting married to Manju. He has further deposed
that the accused appellant killed his wife and four children in the
hope that he may receive some monetary compensation from the
Government. In his cross examination, the PW1 has deposed that his
house is at a distance of one kilometre from the house of the accused
appellant. When the accused appellant reached his house at 6:30 in
the morning on the day of the incident, the PW1 found the accused
appellant in lot of tension. In his cross examination, he has
categorically deposed that he was at the police station up
to 2 o’clock in the night i.e. upto 23
rd
of January, 2010 at 2 A.M. He
has deposed in so many words that the accused appellant Ramanand
was also with him at the police station all throughout. He has deposed
that while he left the police station, Ramanand – accused appellant
was not allowed to leave the police station. He has deposed that
Ramanand was challaned by the police on the third day, till then
Ramanand was continuously staying at the police station.
31.What emerges from the evidence of the PW1 is that after the
incident, the accused appellant visited his house at 6:30 in the
morning and narrated as to what had happened. PW1 along with one
Pratap thereafter reached the house of the accused appellant and saw
the dead bodies of Sangeeta and four minor daughters burning. PW1
tried to douse the fire by pouring water on the dead bodies with the
help of Pratap. PW1 has deposed about the illicit relationship of the
accused appellant with Manju. However, what is important in the
evidence of the PW1 is that from the time the PW1 reached the
police station till the last the accused appellant was at the police
station under the surveillance of the police.
32. The prosecution has examined the PW2, Chhatrapal Raidas. The
PW2 happens to be the brother of the deceased Sangeeta Devi. In his
examination in chief, he has deposed about the extra marital affair of
the accused appellant with Manju. He has also deposed that ten days
before the incident, Sangeeta had visited his house and had narrated
about the harassment that was meted towards her by the accused
appellant. In his cross examination, he has deposed that he came to
know about the incident at 7 o’clock in the morning through
Ramanand. According to the PW2, Ramanand had visited his house
and was informed that his wife and four children were burning in the
house. According to the PW2, the accused appellant saying so left his
house. The PW2 has further deposed in his cross examination that
Pratap and PW1, Shambhu Raidas were to be seen at the house of
the accused appellant dousing the fire with water. He has deposed
that villagers were standing outside the house of the accused
appellant. He has deposed that the clothes of Ramanand were soaked
with blood. After sometime, the Police Inspector reached the place of
incident. The PW2 has deposed that between 8 A.M. and 9 A.M. the
police took the accused appellant to the police station. He has deposed
that within no time, it was confirmed that none else but Ramanand
accused appellant was the assailant.
33.What emerges from the evidence of the PW2 is that the accused
appellant was in an extra marital relationship with Manju and
desperately wanted to get married to Manju. Because of the extra
marital affair, Sangeeta was being harassed by the accused appellant.
However, what is important to note in the evidence of the PW2 is that
Ramanand had visited his house also at 7 o’clock in the morning. The
PW2 also saw Pratap and PW1, Shambhu Raidas at the house of the
accused appellant trying to douse the fire with water. One important
feature of the deposition of the PW2 is that the accused appellant was
taken away by the police between 8 A.M. and 9 A.M. on the day of the
incident.
34.The prosecution has examined the PW3, Babu Ram Hans to
prove the extra judicial confession. The PW3 in his examination in
chief has deposed that on 23.01.2010 while he was at his house, the
accused appellant came about 9 o’clock in the morning and informed
about the incident. According to the PW3, the accused appellant is
said to have confessed before him of having brutally killed his wife and
four minor children. According to the PW3, the accused appellant
sought his help as the PW3 was a leader of the BSP ruling party at
the relevant point of time. However, the PW3 declined to help the
accused appellant in any manner. The PW3 has deposed that he had
narrated to the police inspector about the confession said to have been
made before him by the accused appellant and his statement was also
recorded by the police. The PW3 in his cross examination has
deposed that his village is at the distance of 30 to 35 kilometres from
Naamdar Purwa.
35.We shall explain as to how we are not inclined to believe the
evidence of the PW3, Babu Ram Hans a little later in our judgment.
36.The prosecution has examined the PW4, Ram Kumar son of
Paanchoo. It is the case of the prosecution that even before the PW
4, the accused appellant had made an extra judicial confession about
the crime. The PW4 in his examination in chief has deposed that at
the relevant time, he was the member of the District Panchayat of
BSP. He has deposed that on the very day i.e. 22.01.2010 at 6:30 in
the morning Ramanand came to his house and informed that his wife
and children had been assaulted and set on fire. The PW4 told the
accused appellant that he would help him provided he would tell the
truth. According to the PW4, thereafter the accused appellant
confessed before him that he had killed his wife and children as he
wanted to marry Manju and his wife Sangeeta was opposing him to get
married. He has further deposed in his examination in chief that when
he reached the village of the accused appellant, he saw that the son of
Ramanand was sitting on Ramanand’s lap and Ramanand was crying
and talking to his son saying that he had killed his mother and
sisters. In his cross examination, he has deposed that when the
accused appellant visited his house at 6:30 in the morning, he noticed
that there was blood on his shirt and pant. He has further deposed in
his cross examination that he had informed the police officers that the
accused appellant had visited his house at 6:30 in the morning.
37.What emerges from the evidence of the PW4 is that on
22.01.2010, the accused appellant had visited the house of the
witness at 6:30 in the morning and made an extra judicial confession
about the alleged crime before him. We are not prepared to even
believe the testimony of the PW4. We shall assign reasons a little later
as to why we are not ready to believe the PW4, Babu Ram Hans.
38.The prosecution has examined the PW5, Dr. A.K. Sharma who
conducted the post mortems of the deceased Lakshmi, Kajal and
Chhoti @ Guddi resply. Dr. Sharma in his examination in chief has
deposed that on 23.01.2010, he was posted as a radiologist at the
District Mahila Chikitsalaya, Lakhimpur. On that day, three dead
bodies were brought to the hospital for post mortem. He has deposed
that he had performed the post mortems of all the three dead bodies.
He has recorded the injuries noticed by him in the post mortem
reports of each of the three deceased persons. According to Dr.
Sharma, the cause of death of all the three deceased persons was
shock and haemorrhage as a result of the ante mortem injuries. He
has deposed that he also noticed post mortem burn injuries on all the
three dead bodies. He has deposed that the injuries could have been
caused by a sharpedged weapon like Banka.
39.Nothing turns around so far as the evidence of the PW5, Dr. A.K.
Sharma is concerned.
40. The prosecution has examined the PW6, Uma Shankar Mishra.
At the relevant time, the PW6, Uma Shankar Mishra was serving as
the SubInspector, Chowki incharge Bahjam, Police Station Neem
Gaon, District Lakhimpur Kheri. He has deposed that on 24
th
of
November, 2010, he was posted at the Dhaurhara Police Station.
According to him, the accused appellant was arrested on 24.11.2010
and was taken in custody. While in custody, the accused appellant is
said to have made a statement on his own free will and volition to
show the place where he had hidden the weapon of offence i.e. Banka
and his blood stained clothes. According to the PW6, upon such
statement being made by the accused appellant, he along with the
investigating officer, PW7 left for the place as led by the accused
appellant. On the way, the PW6 is said to have picked up PW2,
Chhatrapal son of Rameshwar and Pratap son of Asharfi Lal, both
residents of Naamdar Purwa to act as the panch witnesses for the
purpose of drawing the discovery panchnama. According to the PW6,
the accused appellant led the police party to a coriander field and took
out the weapon of offence i.e. Banka and also the blood stained
clothes. The discovery panchnama was accordingly drawn under
Section 27 of the Evidence Act, 1872. We do not propose to look into
the cross examination of the PW6 as there is hardly anything in the
cross examination and not relevant for our purpose.
41. The prosecution has examined the PW7, Inspector Yogendra
Singh as the investigating officer. The PW7 in his examination in chief
has deposed that he had recorded the statements of the PW2,
Chhatrapal Raidas and others on 23.01.2010. He has deposed that he
arrested the accused appellant on 24.01.2010. He has deposed that he
recorded the statements of the PW3 and PW4 resply on
25.01.2010. Nothing turns around in the cross examination of the
PW7, Yogendra Singh.
42. It is not necessary for us to discuss the evidence of the PW8 Dr.
S.P. Singh. Dr. Singh had performed the post mortems of the deceased
Tulsi and Sangeeta.
43.The prosecution has examined the PW9, Dr. Ankit Kumar Singh.
According to the PW9, the accused appellant was brought at the
C.H.C. Dhaurhara on 22.01.2010 at 10:30 in the morning for medical
examination. He has deposed that on 22.01.2010 he was incharge
Medical Officer at the C.H.C. Dhaurhara. He has deposed that the
accused appellant Ramanand was brought at the C.H.C. Dhaurhara
by Constable Brij Mohan Singh of Police Station Dhaurhara along with
a police yadi. During the medical examination of the accused
appellant, he noticed the following injuries on the body of the accused
appellant:
“1. Lacerated wound 2 cm x 0.5 cm on left side of head, 10
cm above left ear.
2. Lacerated wound 5 cm x 0.5 cm on middle of the head;
2 cm away from Injury 1.
3. Lacerated wound 4.5 cm x 0.5 cm on middle of the
head; 1 cm away from Injury No. 2.
4. Superficial burn injury on left side of neck in length 8
cm x 6 cm.
5. Superficial burn injury on right side of neck in length
10 cm x 7 cm.”
44.Dr. Singh has further deposed that all the injuries were simple in
nature and fresh. During the medical examination, the clothes of the
accused appellant were smelling of kerosene oil. In the cross
examination of Dr. Singh, he has deposed that the injuries
Nos. 1, 2 and 3 resply noted during the medical examination of the
accused appellant could have been caused with the butt of a gun. He
has deposed that the injury Nos. 4 and 5 resply could have been
suffered by the accused appellant while trying to rescue. He has
deposed that at the time of medical examination of the accused
appellant, there was no fresh bleeding from the wounds. At the time of
cleaning the wounds with cotton, the blood started to ooze. He has
deposed that the injuries could not have been 12 hours old.
PRINCIPLES OF LAW RELATING TO APPRECIATION OF
CIRCUMSTANTIAL EVIDENCE
45.In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English
Philosopher included a whole chapter upon what lies next when the
direct evidence does not lead to any special inference. It is called
Circumstantial Evidence. According to him, in every case, of
circumstantial evidence, there are always at least two facts to be
considered:
a) The Factum probandum, or say, the principal fact (the fact the
existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the
existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation
of circumstantial evidence, yet to convict an accused on the basis of
circumstantial evidence, the Court must follow certain tests which are
broadly as follows:
1.Circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
2.Those circumstances must be of a definite tendency unerringly
pointing towards guilt of the accused and must be conclusive in
nature;
3.The circumstances, if taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and
none else; and
4.The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused but should be inconsistent
with his innocence. In other words, the circumstances should
exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand is
one of the circumstantial evidence as there was no eye witness of the
occurrence. It is settled principle of law that an accused can be
punished if he is found guilty even in cases of circumstantial evidence
provided, the prosecution is able to prove beyond reasonable doubt
the complete chain of events and circumstances which definitely
points towards the involvement and guilty of the suspect or accused,
as the case may be. The accused will not be entitled to acquittal
merely because there is no eye witness in the case. It is also equally
true that an accused can be convicted on the basis of circumstantial
evidence subject to satisfaction of the expected principles in that
regard.
48. A threeJudge Bench of this Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
“152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh [AIR
1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This
case has been uniformly followed and applied by this
Court in a large number of later decisions uptodate, for
instance, the cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC
625 : AIR 1972 SC 656] . It may be useful to extract what
Mahajan, J. has laid down in Hanumant case [AIR 1952
SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused.
153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may
be’ established. There is not only a grammatical but a
legal distinction between ‘may be proved’ and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the
following observations were made : [SCC para 19, p. 807
: SCC (Cri) p. 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.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
49. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. and J.W. Johnson and Co. 1872, it has
been explained as under:
“In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though really
not so, seem to be contemporaneous. But the case is very
different when we have to determine upon circumstantial
evidence, the judgment in respect of which is essentially
inferential. There is no apparent necessary connection
between the facts and the inference; the facts may be true,
and the inference erroneous, and it is only by comparison with
the results of observation in similar or analogous
circumstances, that we acquire confidence in the accuracy of
our conclusions. ?∙
The term PRESUMPTIVE is frequently used as synonymous
with CIRCUMSTANTIAL EVIDENCE; but it is not so used with
strict accuracy, The word" presumption," ex vi termini,
imports an inference from facts; and the adjunct
"presumptive," as applied to evidentiary facts, implies the
certainty of some relation between the facts and the
inference. Circumstances generally, but not necessarily, lead
to particular inferences; for the facts may be indisputable,
and yet their relation to the principal fact may be only
apparent, and not real; and even when the connection is real,
the deduction may be erroneous. Circumstantial and
presumptive evidence differ, therefore, as genus and species.
The force and effect of circumstantial evidence depend upon
its incompatibility with, and incapability of, explanation or
solution upon any other supposition than that of the truth of
the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum.”
50. Thus, in view of the above, the Court must consider a case of
circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.
The Court has to draw an inference with respect to whether the chain
of circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
conclusion that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a conclusive
nature, and consistent only with the hypothesis of the guilt of the
accused.
ANALYSIS OF THE INCRIMINATING CIRCUMSTANCES RELIED
UPON BY THE TRIAL COURT AND THE HIGH COURT
DISCOVERY OF WEAPON OF OFFENCE AND BLOODSTAINED
CLOTHES
51.It is the case of the prosecution that on 24.01.2010 the accused
appellant was picked up by the investigating officer from nearby a bus
stand and was arrested in connection with the alleged crime. After the
arrest of the accused appellant and while he being in the custody at
the police station, he is said to have on his own free will and volition
made a statement that he would like to point out the place where he
had hidden the weapon of offence (Banka) and his bloodstained
clothes after the commission of the alleged crime. According to him,
after such statement was made by the accused appellant, he along
with his subordinates set forth for the place as led by the accused.
There is something very unusual, that we have noticed in the oral
evidence of the investigating officer. According to him while the police
party along with the accused were on their way, all of a sudden, the
investigating officer realized that he should have two independent
witnesses with him for the purpose of drawing the panchnama of
discovery. In such circumstances, while on the way the investigating
officer picked up PW2, Chhatarpal Raidas and Pratap to act as the
panch witnesses. According to the investigating officer the accused led
them to a coriander field and from a bush he took out the weapon of
offence (Banka) and the bloodstained clothes. The weapon of offence
and the bloodstained clothes were collected in the presence of the two
panch witnesses and the panchnama Exh. 5 was accordingly drawn.
The weapon of offence and the blood stained clothes thereafter were
sent for the Serological Test to the Forensic Science laboratory. We are
of the view that the Courts below committed a serious error in relying
upon this piece of evidence of discovery of a fact, i.e., the weapon &
clothes at the instance of the accused as one of the incriminating
circumstances in the chain of other circumstances. We shall explain
here below why we are saying so.
52. Section 27 of the Evidence Act, 1872 reads thus:
“27. How much of information received from
accused may be proved.—Provided that, when any fact
is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may
be proved.”
53.If, it is say of the investigating officer that the accused appellant
while in custody on his own free will and volition made a statement
that he would lead to the place where he had hidden the weapon of
offence along with his blood stained clothes then the first thing that
the investigating officer should have done was to call for two
independent witnesses at the police station itself. Once the two
independent witnesses arrive at the police station thereafter in their
presence the accused should be asked to make an appropriate
statement as he may desire in regard to pointing out the place where
he is said to have hidden the weapon of offence. When the accused
while in custody makes such statement before the two independent
witnesses (panch witnesses) the exact statement or rather the exact
words uttered by the accused should be incorporated in the first part
of the panchnama that the investigating officer may draw in
accordance with law. This first part of the panchnama for the purpose
of Section 27 of the Evidence Act is always drawn at the police station
in the presence of the independent witnesses so as to lend credence
that a particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the place
where the weapon of offence or any other article used in the
commission of the offence had been hidden. Once the first part of the
panchnama is completed thereafter the police party along with the
accused and the two independent witnesses (panch witnesses) would
proceed to the particular place as may be led by the accused. If from
that particular place anything like the weapon of offence or blood
stained clothes or any other article is discovered then that part of the
entire process would form the second part of the panchnama. This is
how the law expects the investigating officer to draw the discovery
panchnama as contemplated under Section 27 of the Evidence Act. If
we read the entire oral evidence of the investigating officer then it is
clear that the same is deficient in all the aforesaid relevant aspects of
the matter.
54. The reason why we are not ready or rather reluctant to accept the
evidence of discovery is that the investigating officer in his oral
evidence has not said about the exact words uttered by the accused at
the police station. The second reason to discard the evidence of
discovery is that the investigating officer has failed to prove the
contents of the discovery panchnama. The third reason to discard the
evidence is that even if the entire oral evidence of the investigating
officer is accepted as it is, what is lacking is the authorship of
concealment. The fourth reason to discard the evidence of the
discovery is that although one of the panch witnesses PW2,
Chhatarpal Raidas was examined by the prosecution in the course of
the trial, yet has not said a word that he had also acted as a panch
witness for the purpose of discovery of the weapon of offence and the
blood stained clothes. The second panch witness namely Pratap
though available was not examined by the prosecution for some
reason. Therefore, we are now left with the evidence of the
investigating officer so far as the discovery of the weapon of offence
and the blood stained clothes as one of the incriminating pieces of
circumstances is concerned. We are conscious of the position of law
that even if the independent witnesses to the discovery panchnama
are not examined or if no witness was present at the time of discovery
or if no person had agreed to affix his signature on the document, it is
difficult to lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted and the
discovery evidence unreliable. In such circumstances, the Court has to
consider the evidence of the investigating officer who deposed to the
fact of discovery based on the statement elicited from the accused on
its own worth.
55. Applying the aforesaid principle of law, we find the evidence of
the investigating officer not only unreliable but we can go to the extent
to saying that the same does not constitute legal evidence.
56. The requirement of law that needs to be fulfilled before accepting
the evidence of discovery is that by proving the contents of the
panchnama. The investigating officer in his deposition is obliged in law
to prove the contents of the panchnama and it is only if the
investigating officer has successfully proved the contents of the
discovery panchnama in accordance with law, then in that case the
prosecution may be justified in relying upon such evidence and the
trial court may also accept the evidence. In the present case, what we
have noticed from the oral evidence of the investigating officer, PW7,
Yogendra Singh is that he has not proved the contents of the discovery
panchnama and all that he has deposed is that as the accused
expressed his willingness to point out the weapon of offence the same
was discovered under a panchnama. We have minutely gone through
this part of the evidence of the investigating officer and are convinced
that by no stretch of imagination it could be said that the investigating
officer has proved the contents of the discovery panchnama (Exh.5).
There is a reason why we are laying emphasis on proving the contents
of the panchnama at the end of the investigating officer, more
particularly when the independent panch witnesses though examined
yet have not said a word about such discovery or turned hostile and
have not supported the prosecution. In order to enable the Court to
safely rely upon the evidence of the investigating officer, it is necessary
that the exact words attributed to an accused, as statement made by
him, be brought on record and, for this purpose the investigating
officer is obliged to depose in his evidence the exact statement and not
by merely saying that a discovery panchnama of weapon of offence
was drawn as the accused was willing to take it out from a particular
place.
57. Let us see what has been exactly stated in the discovery
panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant
portion as under:
“Today on 24.1.2010, the arrested accused Ramanand alias
Nandlal Bharti son of Late Shri Gobre, resident of Naamdar
Purwa, Hamlet Amethi, original resident of village
Basadhiya, Police Station Isanagar, District Lakhimpur Kheri
has been taken out of the lockup, taken in confidence and
then interrogated by me the Station House Officer Yogendra
Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I.
Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal,
Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then
he confessed the offence occurred in the incident and
weepingly said in apologizing manner that, "I myself have
committed this crime to get government grant for being a rich
man and to marry Km. Manju D/o Kanhai, resident of
Pakadiya, Police Station Tambaur, District Sitapur regarding
whereof the detailed statement has been recorded by you. The
baanka used in the incident and the pantshirt, on which
blood spilled from the bodies of deceased persons got stained
and which had been put off by me due to fear, have been kept
hidden at a secret place by me which I can get recovered by
going there." In expectation of recovery of murder weapon and
bloodstained clothes, I the Station House Officer Yogendra
Singh alongwith aforesaid Hamrahis departed carrying
accused Ramanand alias Nandlal Bharti by official jeep
UP70AG0326 alongwith driver Raj Kishor Dixit for the
destination pointed out by the accused, vide Rapat No. 7 time
07.15…” [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7,
Investigating Officer wherein, in his examination in chief, he has
deposed as under:
“In January 2010 I was posted as Station House Officer,
Kotwali Dhaurahara. On 22.1.10, I myself had taken the
investigation of aforesaid case. On that day I had copied
chik, rapat and recorded the statements of chik writer H.
Constable Dhaniram Verma and complainant of the case.
After recording the statement of complainant of the case
Shambhu Raidas I inspected the occurrence spot on his
pointing out and prepared the site plan which is present on
record; on which Exhibit Ka6 has been marked. And I had
also recorded the statement of hearsay witnesses Ahmad
Hussain and Nizamuddin. On 23.1.10, I recorded the
statements of witnesses Kshatrapal, Rustam Raidas. On
24.1.10, I arrested accused Ramanand and recorded his
statement and when he expressed that he may get
recovered the murder weapon used in the incident, I
recovered the murder weapon baanka before the witnesses
on his pointing out; which had been sealedstamped at the
spot and its recovery memo had been prepared at the spot
itself, which is present on record as Exhibit Ka5….”
[Emphasis supplied]
59.We shall also look into the oral evidence of the PW6, Uma
Shankar Mishra who at the relevant point of time was serving as a
SubInspector Chowki Incharge Bahjam, Police Station. It appears
that the PW6 had also participated in the proceedings of discovery
panchnama. He has deposed in his examination in chief as under:
“On 24.11.2010, I was posted at Police Station
Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar
Purwa, Police StationDhaurahara, domicile of village
Basadhiya, Police Station Isha Ganj, District Kheri, the
arrested accused of Crime No. 49/10 U/S 302 State versus
Ramanand alias Nandlal Bharti, was taken out of male lock
up by the then Incharge Inspector and followers S.I. Nand
Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh
Kumar Singh and Co. Shravan Kumar, and interrogated by
the Incharge Inspector in my presence, during which he
confessed and told that he would get recovered the murder
weapon used in the murder and his blood stained pantshirt
which he had kept hidden at a secret place. On this,
expecting the recovery of murder weapon and blood stained
clothes, the SHO along with followers and force, carrying
accused Ramanand with him, departed on an official jeep ~
vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way,
he picked up public witnesses Chhatrapal S/o Rameshwar
and Pratap S/o Asharfi Lal, both residents of Naamdar
Purwa, Hamlet Amethi for the purpose of recovery.”
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original
panchnama (Exh.5), the statement said to have been made by the
accused appellant figures, however, in the oral evidence of the
PW7, investigating officer & PW6, SubInspector the exact statement
has not been deposed, more particularly when it comes to the
authorship of concealment. The contents of the panchnama cannot be
read into evidence as those do not constitute substantive evidence.
61. Further, the examinationinchief of the PW6, SubInspector and
PW7, investigating officer does not indicate that they were read over
the panchnama (Exh.5) before it was exhibited, since one of the panch
witnesses was not examined and the second panch witness though
examined yet has not said a word about the proceedings of the
discovery panchnama. Everything thereafter fell upon the oral
evidence of the investigating officer and the SubInspector (PW6).
62. In the aforesaid context, we may refer to and rely upon the
decision of this Court in the case of Murli v. State of Rajasthan
reported in (2009) 9 SCC 417, held as under:
“34. The contents of the panchnama are not the substantive
evidence. The law is settled on that issue. What is
substantive evidence is what has been stated by the
panchas or the person concerned in the witness box…….”
[Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to
the authorship of concealment by the person who is said to have
discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the
Act are broadly as under:
(1)Discovery of fact in consequence of an information received from
accused;
(2)Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctly to the fact thereby
discovered is admissible – Mohmed Inayatullah v. The State of
Maharashtra: AIR (1976) SC 483
Two conditions for application –
(1)information must be such as has caused discovery of the fact; and
(2)information must relate distinctly to the fact discovered
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446”
65. We may refer to and rely upon a Constitution Bench decision of
this Court in the case of State of Uttar Pradesh v. Deoman
Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph71
explains the position of law as regards the Section 27 of the Evidence
Act:
“71. The law has thus made a classification of accused
persons into two: (1) those who have the danger brought
home to them by detention on a charge; and (2) those
who are yet free. In the former category are also those
persons who surrender to the custody by words or
action. The protection given to these two classes is
different. In the case of persons belonging to the first
category the law has ruled that their statements are not
admissible, and in the case of the second category, only
that portion, of the statement is admissible as is
guaranteed by the discovery of a relevant fact unknown
before the statement to the investigating authority. That
statement may even be confessional in nature, as when
the person in custody says: “I pushed him down such
and such mineshaft”, and the body of the victim is found
as a result, and it can be proved that his death was due
to injuries received by a fall down the mineshaft.”
[Emphasis supplied]
66. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kottaya and Others v. Emperor ,
AIR 1947 PC 67, which have become locus classicus, in the following
words:
"10. ….It is fallacious to treat the “fact discovered”
within the section as equivalent to the object produced;
the fact discovered embraces the place from which the
object is produced and the knowledge of the accused as
to this, and the information given must relate distinctly to
this fact. Information as to past user, or the past history,
of the object produced is not related to its discovery in
the setting in which it is discovered. Information supplied
by a person in custody that “I will produce a knife
concealed in the roof of my house” does not lead to the
discovery of a knife; knives were discovered many years
ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used
in the commission of the offence, the fact discovered is
very relevant. But if to the statement the words be added
“with which I stabbed A" these words are inadmissible
since they do not relate to the discovery of the knife in
the house of the informant."
67. What emerges from the evidence in the form of panchnama is
that the appellant stated before the panch witnesses to the effect that
"I will show you the weapon used in the commission of offence". This
is the exact statement which we could read from the discovery
panchnama and the Investigating Officer also could not have deposed
as regards the exact statement other than what has been recorded in
the panchnama. This statement does not suggest that the appellant
indicated anything about his involvement in concealment of the
weapon. Mere discovery cannot be interpreted as sufficient to infer
authorship of concealment by the person who discovered the weapon.
He could have derived knowledge of the existence of that weapon at
the place through some other source. He may have even seen
somebody concealing the weapon, and, therefore, it cannot be
presumed or inferred that because a person discovered weapon, he
was the person who concealed it, least it can be presumed that he
used it. Therefore, even if discovery by the appellant is accepted, what
emerges from the panchnama of the discovery of weapon and the
evidence in this regard is that he disclosed that he would show the
weapon used in the commission of offence. In the same manner we
have also perused the panchnama Exh.32 wherein the statement said
to have been made by the accused before the panchas in exact words
is "the accused resident of Roghada village on his own free will informs
to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is
that the accused appellant stated before him while he was in custody,
“I may get discovered the murder weapon used in the incident”. This
statement does not indicate or suggest that the accused appellant
indicated anything about his involvement in the concealment of the
weapon. It is a vague statement. Mere discovery cannot be interpreted
as sufficient to infer authorship of concealment by the person who
discovered the weapon. He could have derived knowledge of the
existence of that weapon at the place through some other source also.
He might have even seen somebody concealing the weapon, and,
therefore, it cannot be presumed or inferred that because a person
discovered the weapon, he was the person who had concealed it, least
it can be presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive evidence as
regards the discovery of weapon is that the appellant disclosed that he
would show the weapon used in the commission of offence.
69. In Dudh Nath Pandey v. State of U. P. , AIR (1981) SC 911,
this Court observed that the evidence of discovery of pistol at the
instance of the appellant cannot, by itself, prove that he who pointed
out the weapon wielded it in the offence. The statement
accompanying the discovery was found to be vague to identify the
authorship of concealment and it was held that pointing out of the
weapon may, at the best, prove the appellant’s knowledge as to where
the weapon was kept.
70. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the investigating
officer in his evidence, and also without proving the contents of the
panchnama (Exh.5), the trial court as well as the High Court was not
justified in placing reliance upon the circumstance of discovery of
weapon.
71. If it is the case of the prosecution that the PW2, Chhatarpal
Raidas, s/o Rameshwar Raidas had acted as one of the panch
witnesses to the drawing of the discovery panchnama, then why the
PW2, Chhatarpal Raidas in his oral evidence has not said a word
about he having acted as a panch witness and the discovery of the
weapon of the offence and blood stained clothes being made in his
presence. The fact that he is absolutely silent in his oral evidence on
the aforesaid itself casts a doubt on the very credibility of the two
police witnesses i.e. PW6 and PW7 respectively.
72. In the aforesaid context, we may also refer to a decision of this
Court in the case of Bodhraj alias Bodha and Others v. State of
Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
“18. …..It would appear that under Section 27 as it
stands in order to render the evidence leading to
discovery of any fact admissible, the information must
come from any accused in custody of the police. The
requirement of police custody is productive of extremely
anomalous results and may lead to the exclusion of
much valuable evidence in cases where a person, who is
subsequently taken into custody and becomes an
accused, after committing a crime meets a police officer
or voluntarily goes to him or to the police station and
states the circumstances of the crime which lead to the
discovery of the dead body, weapon or any other
material fact, in consequence of the information thus
received from him. This information which is otherwise
admissible becomes inadmissible under Section 27 if the
information did not come from a person in the custody of
a police officer or did come from a person not in the
custody of a police officer. The statement which is
admissible under Section 27 is the one which is the
information leading to discovery. Thus, what is
admissible being the information, the same has to be
proved and not the opinion formed on it by the police
officer. In other words, the exact information given by the
accused while in custody which led to recovery of the
articles has to be proved. It is, therefore, necessary for
the benefit of both the accused and the prosecution that
information given should be recorded and proved and if
not so recorded, the exact information must be adduced
through evidence. The basic idea embedded in Section
27 of the Evidence Act is the doctrine of confirmation by
subsequent events. The doctrine is founded on the
principle that if any fact is discovered as a search made
on the strength of any information obtained from a
prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The
information might be confessional or noninculpatory in
nature but if it results in discovery of a fact, it becomes a
reliable information. It is now well settled that recovery
of an object is not discovery of fact envisaged in the
section. Decision of the Privy Council in Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74
IA 65] is the mostquoted authority for supporting the
interpretation that the “fact discovered” envisaged in the
section embraces the place from which the object was
produced, the knowledge of the accused as to it, but the
information given must relate distinctly to that effect.
(See State of Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000
Cri LJ 2301] .) No doubt, the information permitted to be
admitted in evidence is confined to that portion of the
information which “distinctly relates to the fact thereby
discovered”. But the information to get admissibility need
not be so truncated as to make it insensible or
incomprehensible. The extent of information admitted
should be consistent with understandability. Mere
statement that the accused led the police and the
witnesses to the place where he had concealed the
articles is not indicative of the information given.”
[Emphasis supplied]
73. Mr. Upadhyay, the learned counsel for the State would submit
that even while discarding the evidence in the form of discovery
panchnama the conduct of the appellant herein would be relevant
under Section 8 of the Evidence Act. The evidence of discovery would
be admissible as conduct under Section 8 of the Evidence Act quite
apart from the admissibility of the disclosure statement under Section
27 of the said Act, as this Court observed in A.N. Venkatesh vs.
State of Karnataka, (2005) 7 SCC 714:
“9. By virtue of Section 8 of the Evidence Act, the conduct
of the accused person is relevant, if such conduct
influences or is influenced by any fact in issue or relevant
fact. The evidence of the circumstance, simpliciter, that
the accused pointed out to the police officer, the place
where the dead body of the kidnapped boy was found
and on their pointing out the body was exhumed, would
be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 or not as held by
this Court in Prakash Chand v. State (Delhi
Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979
SC 400] . Even if we hold that the disclosure statement
made by the accusedappellants (Exts. P15 and P16) is
not admissible under Section 27 of the Evidence Act, still
it is relevant under Section 8…..”
[Emphasis supplied]
74. In the aforesaid context, we would like to sound a note of
caution. Although the conduct of an accused may be a relevant fact
under Section 8 of the Evidence Act, yet the same, by itself, cannot be
a ground to convict him or hold him guilty and that too, for a serious
offence like murder. Like any other piece of evidence, the conduct of
an accused is also one of the circumstances which the court may take
into consideration along with the other evidence on record, direct or
indirect. What we are trying to convey is that the conduct of the
accused alone, though may be relevant under Section 8 of the
Evidence Act, cannot form the basis of conviction.
75. Thus, in view of the aforesaid discussion, we have reached to the
conclusion that the evidence of discovery of the weapon and the blood
stained clothes at the instance of the accused appellant can hardly be
treated as legal evidence, more particularly, considering the various
legal infirmities in the same.
EXTRA JUDICIAL CONFESSION
76. It is the case of the prosecution that on 23.01.2010 the accused
appellant is said to have visited the house of the PW3, Babu Ram
Hans at about 9:00 o’clock in the morning and sought his help. While
seeking help from the PW3, Babu Ram Hans, the accused appellant is
said to have made an extra judicial confession that he had brutally
killed his wife Sangeeta for not giving consent to him to marry Manju.
The accused appellant is also said to have made an extra judicial
confession to the PW3, Babu Ram Hans that he had also killed his
four daughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had
committed a huge mistake. The trial court and the High Court have
believed the so called extra judicial confession said to have been made
by the accused appellant before the PW3, Babu Ram Hans. However,
the trial court as well as the High Court should have put a question to
themselves before believing the extra judicial confession whether the
accused appellant was a free man on 23.01.2010 so as to reach the
house of PW3, Babu Ram Hans at 9:00 o’clock in the morning and
make an extra judicial confession. This is one of the basic infirmities
we have noticed in the judgment of both the Courts. There is cogent
evidence on record to indicate that on 22.01.2010, the accused
appellant first visited the house of PW1, Shambhu Raidas (first
informant) and narrated about the incident. The PW1, Shambhu
Raidas thereafter lodged the First Information Report (FIR) at the
police station and as deposed by him, the accused appellant all
throughout was at the police station. If on 22.01.2010 the accused is
sent for medical examination along with a police yadi accompanied by
a police constable to the hospital then how does it lie in the mouth of
the prosecution to say that after the medical examination the accused
appellant was allowed to go home and move around freely. The
witnesses have said in their oral evidence that the accused appellant
was picked up by the police on 22.01.2010 in the early morning itself.
This entire case put up by the prosecution that an extra judicial
confession was made by the accused appellant before the PW3, Babu
Ram Hans on 23.01.2010 appears to be fabricated and engineered
only to bolster up the case of the prosecution.
77. It is also the case of the prosecution that similar such extra
judicial confession was made by the accused appellant before the PW
4, Ram Kumar, S/o Paanchoo on the very same day of the incident
itself i.e. 22.01.2010 at 06:30 in the morning. If we peruse the oral
evidence of the PW4, Ram Kumar then according to him at the
relevant point of time he was a member of the District Panchayat.
According to PW4, Ram Kumar, the accused appellant had visited his
house at 06:30 in the morning and made an extra judicial confession
that he had committed a serious crime. How does the prosecution
expect us to believe even the second extra judicial confession alleged
to have been made before the PW4, Ram Kumar? How does the
prosecution expect us to believe that the accused appellant was
present at three different places on or about the same time. Either we
believe PW1, Shambhu Raidas (first informant) that the accused
appellant visited his house at 06:30 in morning or we believe the PW
2, Chhatrapal Raidas, who has deposed that the accused appellant
had visited his house at 07:00 o’clock in the morning or we believe the
PW4, Ram Kumar that the accused appellant had visited his house at
06:30 in the morning. How is it possible for the accused appellant to
be present at three different places in or around between 06:30 A.M.
to 07:30 A.M. One another aspect that makes the oral evidence of the
PW4, Ram Kumar very doubtful is that his house is situated at a
distance of 67 kilometers from Dhaurhara and according
to the PW4, the accused appellant visited his house all the way
walking from his own house. The PW4, Ram Kumar also appears to
be a ‘got up’ witness only for the purpose of creating evidence in the
form of extra judicial confession. At this stage, we may once again go
back to the oral evidence of the PW1, Shambhu Raidas (Exh.1). In his
evidence, he has said, “the inspector had not interrogated me at the
police station. The inspector had visited the place of the incident in his
vehicle. I left the police station at the 02:00 o’clock in the night. I had
stayed at the police station right from the time I lodged the FIR in the
morning till 02:00 o’clock in the night and Ramanand also stayed with
me at the police station. The police official had challaned Ramanand on
the third day. Till then Ramanand was continuously staying at the
police station. [Emphasis supplied]
78. The PW2, Chhatrapal Raidas in his evidence has deposed, “ I
came to know about the incident at 07:00 o’clock in the morning. I came
to know through Ramanand. Ramanand had come to my house at
07:00 o’clock. Ramanand was alone then. Ramanand told me that his
wife and children were burning in the house; someone had killed and
set them on fire. Saying this Ramanand left for his home. Thereafter,
Pratap and Shambhu reached the place of Ramanand on a bicycle and I
reached walking. When I reached the house of Ramanand, Pratap and
Shambhu were dousing the fire at the house with water. Ramanand
was warming his body sitting over here and villagers were standing
outside. The clothes of Ramanand were soaked with blood. The
Inspector reached sometime thereafter. Thereafter, I, Shambhu and
Pratap went with the inspector to the police station in a jeep. It took half
an hour for the inspector to arrive at the spot. It was about 89 o’clock in
the morning the police officials took Ramanand to the police station
before us.”
79. Thus, it is very difficult for us to believe that the accused
appellant could have made extra judicial confession on 23.01.2010
before the PW2 and also before the PW4 on 22.01.2010 at 06:30
A.M. i.e. on the date of incident. We have reached to the conclusion
that the investigating officer has deliberately shown arrest of accused
appellant on 24.01.2010 and that too from a place like bus stand. As
discussed above, the accused appellant was arrested and taken in
custody in the morning of 22.01.2010 itself. One Police Constable
along with a police yadi had taken the accused appellant to the
hospital in the morning itself for medical examination. Only with a
view to show that between 22.01.2010 and 24.01.2010 the accused
appellant made extra judicial confession before two witnesses, the
investigating officer has shown arrest of the accused appellant on
24.01.2010 which is just unbelievable.
80. Confessions may be divided into two classes, i.e. judicial and
extra judicial. Judicial confessions are those which are made before
Magistrate or Court in the course of judicial proceedings. Extra
judicial confessions are those which are made by the party elsewhere
than before a Magistrate or Court. Extra judicial confessions are
generally those made by a party to or before a private individual which
includes even a judicial officer in his private capacity. It also includes
a Magistrate who is not especially empowered to record confessions
under Section 164 of the CrPC or a Magistrate so empowered but
receiving the confession at a stage when Section 164 does not apply.
As to extra judicial confessions, two questions arise: (i) were they
made voluntarily? And (ii) are they true? As the Section enacts, a
confession made by an accused person is irrelevant in a criminal
proceedings, if the making of the confession appears to the Court to
have been caused by any inducement, threat or promise, (1) having
reference to the charge against the accused person, (2) proceeding
from a person in authority, and (3) sufficient, in the opinion of the
Court to give the accused person grounds which would appear to him
reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him. It follows that a confession would be
voluntary if it is made by the accused in a fit state of mind, and if it is
not caused by any inducement, threat or promise which has reference
to the charge against him, proceeding from a person in authority. It
would not be involuntary, if the inducement, (a) does not have
reference to the charge against the accused person, or (b) it does not
proceed from a person in authority; or (c) it is not sufficient, in the
opinion of the Court to give the accused person grounds which would
appear to him reasonable for supposing that, by making it, he would
gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him. Whether or not the confession was
voluntary would depend upon the facts and circumstances of each
case, judged in the light of Section 24 of the Evidence Act. The law is
clear that a confession cannot be used against an accused person
unless the Court is satisfied that it was voluntary and at that stage
the question whether it is true or false does not arise. If the facts and
circumstances surrounding the making of a confession appear to cast
a doubt on the veracity or voluntariness of the confession, the Court
may refuse to act upon the confession, even if it is admissible in
evidence. One important question, in regard to which the Court has to
be satisfied with is, whether when the accused made confession, he
was a free man or his movements were controlled by the police either
by themselves or through some other agency employed by them for the
purpose of securing such a confession. The question whether a
confession is voluntary or not is always a question of fact. All the
factors and all the circumstances of the case, including the important
factors at the time given for reflection, scope of the accused getting a
feeling of threat, inducement or promise, must be considered before
deciding whether the Court is satisfied that its opinion, the impression
caused by the inducement, threat or promise, if any, has been fully
removed. A free and voluntary confession is deserving of highest
credit, because it is presumed to flow from the highest sense of guilt.
[See R. V. Warwickshall: (1783) Lesch 263)]. It is not to be conceived
that a man would be induced to make a free and voluntary confession
of guilt, so contrary to the feelings and principles of human nature, if
the facts confessed were not true. Deliberate and voluntary
confessions of guilt, if clearly proved, are among the most effectual
proofs in law. An involuntary confession is one which is not the result
of the free will of the maker of it. So, where the statement is made as a
result of the harassment and continuous interrogation for several
hours after the person is treated as an offender and accused, such
statement must be regarded as involuntary. The inducement may take
the form of a promise or of threat, and often the inducement involves
both promise and threat, a promise of forgiveness if disclosure is made
and threat of prosecution if it is not. (See Woodroffe Evidence, 9th
Edn. Page 284). A promise is always attached to the confession,
alternative while a threat is always attached to the silencealternative;
thus, in the one case the prisoner is measuring the net advantage of
the promise, minus the general undesirability of a false confession, as
against the present unsatisfactory situation; while in the other case he
is measuring the net advantages of the present satisfactory situation,
minus the general undesirability of the confession against the
threatened harm. It must be borne in mind that every inducement,
threat or promise does not vitiate a confession. Since the object of the
rule is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such as is
calculated to lead to an untrue confession. On the aforesaid analysis
the Court is to determine the absence or presence of inducement,
promise etc. or its sufficiency and how or in what measure it worked
on the mind of the accused. If the inducement, promise or threat is
sufficient in the opinion of the Court, to give the accused person
grounds which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil, it is enough
to exclude the confession. The words 'appear to him' in the last part of
the section refer to the mentality of the accused. (See State of
Rajasthan v. Raja Ram, (2003) 8 SCC 180)
81. An extra judicial confession, if voluntary and true and made in a
fit state of mind, can be relied upon by the Court. The confession will
have to be proved like any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the veracity of the
witness to whom it has been made. The value of the evidence as to the
confession depends on the reliability of the witness who gives the
evidence. It is not open to any Court to start with a presumption that
extra judicial confession is a weak type of evidence. It would depend
on the nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a
confession. Such a confession can be relied upon and conviction can
be founded thereon if the evidence about the confession comes from
the mouth of witnesses who appear to be unbiased, not even remotely
inimical to the accused, and in respect of whom nothing is brought
out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the words spoken
to by the witness are clear, unambiguous and unmistakably convey
that the accused is the perpetrator of the crime and nothing is omitted
by the witness which may militate against it. After subjecting the
evidence of the witness to a rigorous test on the touchstone of
credibility, the extra judicial confession can be accepted and can be
the basis of a conviction if it passes the test of credibility.
82. Extra judicial confession is a weak piece of evidence and the
court must ensure that the same inspires confidence and is
corroborated by other prosecution evidence. It is considered to be a
weak piece of evidence as it can be easily procured whenever direct
evidence is not available. In order to accept extra judicial confession, it
must be voluntary and must inspire confidence. If the court is
satisfied that the extra judicial confession is voluntary, it can be acted
upon to base the conviction.
83. Considering the admissibility and evidentiary value of extra
judicial confession, after referring to various judgments,
in Sahadevan and Another v. State of Tamil Nadu , (2012) 6 SCC
403, this Court held as under:
“15.1. In Balwinder Singh v. State of Punjab [1995
Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated
the principle that: (SCC p. 265, para 10)
“10. An extrajudicial confession by its very nature is
rather a weak type of evidence and requires
appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by
suspicious circumstances, its credibility becomes
doubtful and it loses its importance.”
x x x x
15.4. While explaining the dimensions of the principles
governing the admissibility and evidentiary value of an
extrajudicial confession, this Court in State of
Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC
(Cri) 1965] stated the principle that: (SCC p. 192, para
19)
“19. An extrajudicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by
the court. The confession will have to be proved like
any other fact. The value of the evidence as to
confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made.”
The Court further expressed the view that: (SCC p. 192,
para 19)
“19. … Such a confession can be relied upon and
conviction can be founded thereon if the evidence
about the confession comes from the mouth of
witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of
whom nothing is brought out which may tend to
indicate that he may have a motive of attributing an
untruthful statement to the accused.…”
x x x x
15.6. Accepting the admissibility of the extrajudicial
confession, the Court in Sansar Chand v. State of
Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79]
held that: (SCC p. 611, paras 2930)
“29. There is no absolute rule that an extrajudicial
confession can never be the basis of a conviction,
although ordinarily an extrajudicial confession should
be corroborated by some other material. [Vide Thimma
and Thimma Raju v. State of Mysore [(1970) 2 SCC
105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of
U.P. [AIR 1959 SC 902 : 1959 Cri LJ
1219] , Sivakumar v. State [(2006) 1 SCC 714 : (2006)
1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41
and 42), Shiva Karam Payaswami Tewari v. State of
Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri)
1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC
449 : (2009) 3 SCC (Cri) 1082] ]””
[Emphasis supplied]
84. It is well settled that conviction can be based on a voluntarily
confession but the rule of prudence requires that wherever possible it
should be corroborated by independent evidence. Extra judicial
confession of accused need not in all cases be corroborated. In Madan
Gopal Kakkad v. Naval Dubey and Another , (1992) 3 SCC 204, this
Court after referring to Piara Singh and Others v. State of Punjab ,
(1977) 4 SCC 452, held that the law does not require that the evidence
of an extra judicial confession should in all cases be corroborated. The
rule of prudence does not require that each and every circumstance
mentioned in the confession must be separately and independently
corroborated.
85. The sum and substance of the aforesaid is that an extra judicial
confession by its very nature is rather a weak type of evidence and
requires appreciation with great deal of care and caution. Where an
extra judicial confession is surrounded by suspicious circumstances,
its credibility becomes doubtful and it loses its importance like the
case in hand. The Courts generally look for an independent reliable
corroboration before placing any reliance upon an extra judicial
confession.
MOTIVE
86. The Courts below have relied upon the strong motive for the
accused appellant to commit the crime as one of the incriminating
circumstances. It is the case of the prosecution that the accused
appellant desperately wanted to get married to Manju. Manju herself
at the relevant point of time was a married lady. It appears from the
evidence on record that the accused appellant had even got engaged
with Manju during the subsistence of his marriage with the deceased
Sangeeta. It also appears that the engagement ceremony was
celebrated with pomp and show. However, before the accused
appellant could get married to Manju, he got arrested in one offence
under Section 307 of the IPC. According to the prosecution thereafter,
although the accused appellant tried his best to get married to Manju,
more particularly, after being released on bail yet as there was lot of
opposition at the end of his wife deceased Sangeeta, he was not able to
marry her. In such circumstances, it is the case of the prosecution
that the accused appellant decided to terminate his wife Sangeeta as
well his four minor daughters on the fateful night of the incident.
87. It is a settled principle of criminal jurisprudence that in a case
based on circumstantial evidence, motive for committing the crime on
the part of the accused assumes greater importance. This Court in
various decisions has laid down the principles holding that motive for
commission of offence no doubt assumes greater importance in cases
resting on circumstantial evidence than those in which direct evidence
regarding commission of offence is available. It is equally true that
failure to prove motive in cases resting on circumstantial evidence is
not fatal by itself. However, it is also well settled and it is trite in law
that absence of motive could be a missing link of incriminating
circumstances, but once the prosecution has established the other
incriminating circumstances to its entirety, absence of motive will not
give any benefit to the accused.
88. Having regard to the nature of the evidence on record, there is
something to indicate that the accused appellant had illicit
relationship with Manju and wanted to settle in life marrying Manju.
As noted above, in the past accused appellant had got engaged with
Manju and was on the verge of getting married. At the relevant point of
time when the accused appellant got engaged with Manju, it appears
that one and all including the deceased Sangeeta were consenting
parties. There is nothing on record to indicate that at the time of
engagement of accused appellant with Manju, the deceased Sangeeta
had raised hue and cry or had opposed such decision of her husband.
Of course, this is something which is very personal. If at all we believe
the illicit relationship of the accused appellant with Manju, then it is
possible that the deceased Sangeeta might be an absolutely helpless
lady and could not have done anything in that regard. However, the
moot question is should this motive by alone be held sufficient to
convict the accused appellant for the alleged crime and sentence him
to death.
89. In the case of Sampath Kumar v. Inspector of Police
Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court
held as under:
“29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004
SCC (Cri) Supp 85] the prosecution case was based
entirely upon circumstantial evidence and a motive.
Having discussed the circumstances relied upon by the
prosecution, this Court rejected the motive which was the
only remaining circumstance relied upon by the
prosecution stating that the presence of a motive was not
enough for supporting a conviction, for it is well settled
that the chain of circumstances should be such as to lead
to an irresistible conclusion, that is incompatible with the
innocence of the accused.
30. To the same effect is the decision of this Court
in Santosh Kumar Singh v. State [(2010) 9 SCC 747 :
(2010) 3 SCC (Cri) 1469] and Rukia Begum v. State of
Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 :
AIR 2011 SC 1585] where this Court held that motive
alone in the absence of any other circumstantial evidence
would not be sufficient to convict the appellant.
Reference may also be made to the decision of this Court
in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 :
(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Court
explained the legal position as follows: (Sunil Rai
case [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR
2011 SC 2545] , SCC p. 266, paras 3132)
“31. … In any event, motive alone can hardly be a
ground for conviction.
32. On the materials on record, there may be some
suspicion against the accused, but as is often said,
suspicion, howsoever strong, cannot take the place of
proof.”
31. Suffice it to say although, according to the appellants
the question of the appellant Velu having the motive to
harm the deceased Senthil for falling in love with his
sister, Usha did not survive once the family had decided
to offer Usha in matrimony to the deceased Senthil. Yet
even assuming that the appellant Velu had not
reconciled to the idea of Usha getting married to the
deceased Senthil, all that can be said was that the
appellant Velu had a motive for physically harming the
deceased. That may be an important circumstance in a
case based on circumstantial evidence but cannot take
the place of conclusive proof that the person concerned
was the author of the crime. One could even say that the
presence of motive in the facts and circumstances of the
case creates a strong suspicion against the appellant but
suspicion, howsoever strong, also cannot be a substitute
for proof of the guilt of the accused beyond reasonable
doubt.”
[Emphasis supplied]
90. Thus, even if it is believed that the accused appellant had a
motive to commit the crime, the same may be an important
circumstance in a case based on circumstantial evidence but cannot
take the place as a conclusive proof that the person concerned was the
author of the crime. One could even say that the presence of motive in
the facts and circumstances of the case creates a strong suspicion
against the accused appellant but suspicion, howsoever strong,
cannot be a substitute for proof of the guilt of the accused beyond
reasonable doubt.
91. The fact that we have ruled out the circumstances relating to the
making of an extra judicial confession and the discovery of the weapon
of offence as not having been established, the chain of circumstantial
evidence snaps so badly that to consider any other circumstance, even
like motive, would not be necessary.
FALSE EXPLANATION OFFERED BY THE ACCUSED APPELLANT
AS AN ADDITIONAL LINK
92. It is the case of the prosecution all throughout that the accused
appellant offered false explanation in his defence. To put it in other
words, according to the courts below the say of the accused appellant
that on the fateful night of the incident four unidentified persons
killed his wife and daughters mercilessly and thereafter, set their dead
bodies on fire stood falsified, in view of the incriminating
circumstances pointing towards the guilt of the accused. According to
the trial court and the High Court, the explanation offered by the
accused appellant in regard to the injuries suffered by him on his
head is established to be false. In such circumstances, both the courts
took the view that the false explanation offered by the accused
appellant is an additional link in the chain of circumstances.
93.It appears from the materials on record that in all, three further
statements of the accused appellant were recorded by the trial court
under Section 313 of the CrPC. This is one another unusual feature of
this matter. Ordinarily and more particularly having regard to the
language of Section 313 of the CrPC, the further statement of an
accused is to be recorded once the prosecution closes its evidence and
before the accused enters his defence. In the case on hand, it appears
that on 19.07.2013, in all eight prosecution witnesses were examined.
At the end of the day, the trial court recorded the further statement of
the accused appellant. The Question No. 12 reads thus:
“Question 12: Do you want to submit anything else?
Answer: Manua alias Ramakant, Kamlkant and Ramakant
had killed my elder brother Siyaram, & for that I had lodged
F.I.R. My wife Sangita and Siyaram's daughter Gudiya were
the eye witnesses of this case. The accused persons, with
intention to erase evidence, had assaulted me and my wife
Sangita, and burnt her by pouring kerosene oil. They wanted
to kill me too. That's why they poured kerosene oil on me as
well. The daughter of Siyaram died of sickness. This incident
had been caused by Ramakant, Kamlakant and Ramakant.”
94.On 14.11.2013, the second further statement of the accused
appellant was recorded by the trial court wherein the Question No. 8
reads thus:
“Question 8: Do you want to submit anything else?
Answer: I am innocent. I may be acquitted.”
95.On 21.07.2016, the third further statement of the accused
appellant came to be recorded by the trial court wherein the Question
No. 4 reads thus:
“Question 4: Do you want to submit anything else?
Answer:- I and my brother Siyaram were living at village
Basadiya, Police Station- Dhaurhara. The brahmins of Basadiya
had committed murder of my brother Siyaram. I was complainant
in that case. Due to their fear, I started living at Naamdar Purwa.
My wife and the daughter of Siyaram were witnesses of his
murder. His daughter had died. The accused persons of the
murder of Siyaram had killed my wife and family for erasing the
evidence. They intended to kill me as well due to which I
sustained injuries.”
96.It is well settled that the prosecution must stand or fall on its
own legs and it cannot derive any strength from the weakness of the
defence. Where various links in a chain are in themselves complete,
then a false plea or a false defence may be called into aid only to lend
assurance to the Court. In other words, before using the additional
link it must be proved that all the links in the chain are complete and
do not suffer from any infirmity. It is not the law where there is any
infirmity or lacunae in the prosecution case, the same could be cured
or supplied by a false defence or a false plea which is not accepted by
a Court.
97. Before a false explanation can be used as an additional link, the
following essential conditions must be satisfied:
(i)Various links in the chain of evidence led by the prosecution
have been satisfactorily proved.
(ii)Such circumstances points to the guilt of the accused as
reasonable defence.
(iii)The circumstance is in proximity to the time and situation.
98. If the aforesaid conditions are fulfilled only then a Court use a
false explanation or a false defence as an additional link to lend as
assurance to the Court and not otherwise. [see Sharad Biridhichand
Sarda v. State of Maharashtra, AIR (1984) SC 1622]
99.It is sufficient if the accused person succeeds in proving a
preponderance of probability in favour of his case. It is not necessary
for the accused person to prove his case beyond a reasonable doubt or
in default to incur a verdict of guilty. The onus of proof lying upon the
accused person is to prove his case by a preponderance of probability.
In the American Jurisprudence, 2nd Edition, Vol. 30, the expression
“preponderance of evidence” has been defined in Article 1164. In
America the term means “the weight, credit and value of the aggregate
evidence on either side, and is usually considered to be synonymous
with the term greater weight of the evidence”, or “greater weight of the
credible evidence”. It is a phrase which, in the last analysis, means
probability of the truth. To be satisfied, certain, or convinced is a
much higher test than the test of “preponderance of evidence”. The
phrase “preponderance of probability” appears to have been taken
from Charles R. Cooper v. F. W. Slade, (185759) 6 HLC 746. The
observations made therein make it clear that what “preponderance of
probability” means “more probable and rational view of the case”, not
necessarily as certain as the pleading should be.
100.Again, at the cost of repetition, we may state that it is not
necessary for us to go into the issue of false explanation, said to have
been offered by the accused appellant as at the most a false
explanation can be used as an additional link in the chain of evidence
led by the prosecution. This issue pales into insignificance as the
various links in the chain of evidence led by the prosecution having
not been satisfactorily proved.
101.The inalienable interface of presumption of innocence and the
burden of proof in a criminal case on the prosecution has been
succinctly expounded in the following passage from the treatise "The
Law of Evidence" fifth edition by Ian Dennis at page 445:
“The presumption of innocence states that a person is
presumed to be innocent until proven guilty. In one sense
this simply restates in different language the rule that the
burden of proof in a criminal case is on the prosecution to
prove the defendant's guilt. As explained above, the burden
of proof rule has a number of functions, one of which is to
provide a rule of decision for the factfinder in a situation of
uncertainty. Another function is to allocate the risk of mis
decision in criminal trials. Because the outcome of wrongful
conviction is regarded as a significantly worse harm than
wrongful acquittal the rule is constructed so as to minimise
the risk of the former. The burden of overcoming a
presumption that the defendant is innocent therefore
requires the state to prove the defendant's guilt."
[Emphasis supplied]
102.The above quote thus seemingly concedes a preference to
wrongful acquittal compared to the risk of wrongful conviction. Such
is the abiding jurisprudential concern to eschew even the remotest
possibility of unmerited conviction.
103.This applies with full force particularly in fact situations like the
one on hand where the charge is sought to be established by
circumstantial evidence. These enunciations are so well entrenched
that we do not wish to burden the present narration by referring to the
decisions of this Court in this regard.
104.Addressing this aspect, however, is the following extract also
from the same treatise "The Law of Evidence" fifth edition by Ian
Dennis at page 483:
"Where the case against the accused depends wholly or
partly on inferences from circumstantial evidence, factfinders
cannot logically convict unless they are sure that inferences
of guilt are the only ones that can reasonably be drawn. If
they think that there are possible innocent explanations for
circumstantial evidence that are not "merely fanciful", it must
follow that there is a reasonable doubt about guilt. There is
no rule, however, that judges must direct juries in terms not
to convict unless they are sure that the evidence bears no
other explanation than guilt. It is sufficient to direct simply
that the burden on the prosecution is to satisfy the jury
beyond reasonable doubt, or so that they are sure.
The very high standard of proof required in criminal cases
minimises the risk of a wrongful conviction. It means that
someone whom, on the evidence, the factfinder believes is
"probably" guilty, or "likely" to be guilty will be acquitted,
since these judgments of probability necessarily admit that
the factfinder is not "sure". It is generally accepted that some
at least of these acquittals will be of persons who are in fact
guilty of the offences charged, and who would be convicted if
the standard of proof were the lower civil standard of the
balance of probabilities. Such acquittals are the price paid for
the safeguard provided by the "beyond reasonable doubt"
standard against wrongful conviction."
[Emphasis supplied]
105.We must remind ourselves of what this Court observed in the
case of Shankarlal Gyarasilal Dixit v. State of Maharashtra
reported in (1981) 2 SCC 35. We quote as under:
“32. …..But, while formulating its own view the High Court,
with respect, fell into an error in stating the true legal
position by saying that what the court has to consider is
whether the cumulative effect of the circumstances
establishes the guilt of the accused beyond the “shadow of
doubt”. In the first place, “shadow of doubt”, even in cases
which depend on direct evidence is shadow of “reasonable”
doubt. Secondly, in its practical application, the test which
requires the exclusion of other alternative hypotheses is far
more rigorous than the test of proof beyond reasonable
doubt.”
[Emphasis supplied]
INJURIES ON THE BODY OF THE ACCUSED APPELLANT
106.It appears from the materials on record that the accused
appellant was forwarded to the Community Health Centre (CHC)
Dhaurhara, accompanied by the police constable Brij Mohan Singh for
the purpose of medical examination on the date of the incident itself,
i.e., 22.01.2010. PW9, Dr. Ankit Kumar Singh had examined the
accused appellant and in the medical certificate issued by him Exh.
44, he noted five injuries in or around the head and the neck region.
The first three injuries noted are in the form of lacerated wounds,
whereas the other two injuries as superfluous burn injuries. It was
argued before us by the learned counsel appearing for the State that
the injuries found on the body of the accused appellant points towards
his complicity in the crime. It was also sought to be argued that the
explanation offered by the accused appellant in regard to the injuries
suffered by him is falsified by the circumstantial evidence on record.
On the other hand, the defence also argued that the nonexplanation
of the injuries suffered by the accused appellant at the end of the
prosecution is fatal. Thus, both the sides want to make the most of
the injuries which were found on the body of the accused appellant.
107.We are of the view that both the sides are wrong in their own
way. The settled law is that if there are serious injuries or grievous
injuries found on the body of the accused then the prosecution owes a
duty to explain such injuries and the failure on the part of the
prosecution to explain may point towards the innocence of the
accused. At the same time, the wellsettled law is that if the injuries
are superfluous or minor in nature then the prosecution need not
explain such injuries. In the case on hand, the accused appellant has
offered some explanation which could be said to be compatible with
the defence he has put forward. As explained earlier, the accused has
to establish his defence on preponderance of probability and not
beyond reasonable doubt. The accused in his statement recorded
under Section 313 of the CrPC has said that he suffered the head
injuries as one of the assailants out of the four had hit him on his
head with the butt of the gun. PW9, Dr. Ankit Kumar Singh in his
evidence has said that the injurie Nos. 1, 2 and 3 resply could
have been caused by the butt of the gun. PW9, Dr. Ankit Kumar
Singh has not said that the injuries suffered by the accused appellant
were selfinflicted injuries.
108.The prosecution wants us to accept the other side of the story.
What the prosecution wants to convey is that the accused appellant
suffered the injuries while committing the crime. This is suggestive of
the fact that the accused appellant might have suffered the injuries
only if one of the deceased persons had retaliated in defence at the
time of the assault. Such is not even the case of the prosecution. We
rule out this theory of counter defence at the end of any of the
deceased persons because out of five deceased persons four were
minor children.
109.If anyone could have offered any resistance, then it could have
been the deceased Sangeeta. However, having regard to the nature of
the injuries suffered by the deceased Sangeeta, it is difficult to even
say that she might have realised for even a second as to what was
happening.
110.We see it from a different perspective. For the time being, we
proceed on the footing or the assumption that the accused appellant
wanted to do away with his wife and children. We fail to understand
what could be the good reason for the accused appellant after the
assault to cut the bodies into pieces. We find some merit in the
submission of Mr. S. Niranjan Reddy, the learned senior counsel for
the accused appellant that it could be a sign of grave warning from the
other side who belong to the uppercaste (Brahmins) as to how
revengeful and venomous they could be.
111.In Dhananjay Shanker Shetty v. State of Maharashtra,
(2002) 6 SCC 596, in paragraph 10 in reference to the circumstantial
evidence, in the case of murder, the nonexplanation of injuries on
accused by prosecution was held to be significant when there are
circumstances which makes prosecution case doubtful. For the
relevant purpose, the relevant extract of paragraph 10 is extracted as
below:
“10. ....But nonexplanation of injuries assumes significance
when there are material circumstances which make the
prosecution case doubtful. Reference in this connection may
be made to recent decisions of this Court in the cases
of Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001)
6 SCC 145 : 2001 SCC (Cri) 1070] and Kashiram v. State of
M.P. [(2002) 1 SCC 71 : 2002 SCC (Cri) 68]. In the present
case, nonexplanation of injuries on the appellant by the
prosecution assumes significance as there are
circumstances which make the prosecution case, showing
the complicity of the appellant with the crime, highly
doubtful.”
[Emphasis supplied]
112.In Mohar Rai and Bharath Rai v. State of Bihar , AIR 1968
SC 1281, it was observed:
“6. …..In our judgment the failure of the prosecution to offer
any explanation in that regard shows that evidence of the
prosecution witnesses relating to the incident is not true or
at any rate not wholly true. Further those injuries
probabilise the plea taken by the appellants.”
[Emphasis supplied]
113.In another important case Lakshmi Singh and Others v.
State of Bihar, (1976) 4 SCC 394, after referring to the ratio laid
down in Mohar Rai (supra), this Court observed:
“12. …..where the prosecution fails to explain the injuries on
the accused, two results follow: (1) that the evidence of the
prosecution witnesses is untrue; and (2) that the injuries
probabilise the plea taken by the appellants…..”
114.It was further observed that:
“12. …..in a murder case, the nonexplanation of the injuries
sustained by the accused at about the time of the occurrence
or in the course of altercation is a very important
circumstance from which the court can draw the following
inferences:
(1) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version;
(2) that the witnesses who have denied the presence
of the injuries on the person of the accused are lying
on a most material point and therefore their evidence
is unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused it is
rendered probable so as to throw doubt on the
prosecution case…..”
115.In Mohar Rai (supra) it is made clear that failure of the
prosecution to offer any explanation regarding the injuries found on
the accused may show that the evidence related to the incident is not
true, or at any rate, not wholly true. Likewise in Lakshmi Singh
(supra) it is observed that any nonexplanation of the injuries on the
accused by the prosecution may affect the prosecution case. But
such a nonexplanation may assume greater importance where the
defence gives a version which competes in probability with that of the
prosecution. But where the evidence is clear, cogent and creditworthy
and where the court can distinguish the truth from falsehood, the
mere fact that the injuries are not explained by the prosecution
cannot itself be a sole basis to reject such evidence, and consequently
the whole case. Much depends on the facts and circumstances of
each case. These aspects were highlighted by this Court in Vijay
Singh and Ors. v. State of U.P., (1990) CriLJ 1510.
CONCLUSION
116.Thus, none of the pieces of evidence relied on as incriminating by
the courts below, can be treated as incriminating pieces of
circumstantial evidence against the accused. Realities or truth apart,
the fundamental and basic presumption in the administration of
criminal law and justice delivery system is the innocence of the alleged
accused and till the charges are proved beyond reasonable doubt on
the basis of clear, cogent, credible or unimpeachable evidence, the
question of indicting or punishing an accused does not arise, merely
carried away by heinous nature of the crime or the gruesome manner
in which it was found to have been committed. Though the offence is
gruesome and revolts the human conscience but an accused can be
convicted only on legal evidence and if only a chain of circumstantial
evidence has been so forged as to rule out the possibility of any other
reasonable hypothesis excepting the guilt of the accused. In
Shankarlal Gyarasilal (supra), this Court cautioned " human
nature is too willing, when faced with brutal crimes, to spin stories out
of strong suspicions ". This Court has held time and again that between
“may be true” and “must be true” there is a long distance to travel
which must be covered by clear, cogent and unimpeachable evidence
by the prosecution before an accused is condemned a convict. [See
Ashish Batham v. State of M.P., (2002) 7 SCC 31].
117.Before parting with the case, we would like to place on record an
observation of ours, touching an important aspect of the case. Without
any hesitation and with disappointment, we state that the case on
hand is one of most perfunctory investigation. It appears that the
accused herein was provided with a legal aid. He might not have been
able to afford a good and experienced trial side lawyer to defend
himself. We have noticed that the crossexamination of each and every
witness is below average. Questions, which the defence counsel was
not supposed to put to the prosecution witnesses were put without
realising or understanding the legal implications of the answers to
such questions, more particularly, when they were not necessary. The
defence counsel remained oblivious of the position of law that
suggestions made to the witnesses by the defence the answers to those
are binding to the accused.
118.Any defence counsel with a reasonable standing at the Bar is
expected to know that crossexamination is not the only method of
discrediting a witness. If the oral testimony of certain witnesses is
contrary to the proved facts and if their testimony is on the face of it
unacceptable, their evidence might well be discarded on that ground
alone.
119.It is by far now wellsettled for a legal proposition that it is the
duty of the court to see and ensure that an accused put on a criminal
trial is effectively represented by a defence counsel, and in the event
on account of indigence, poverty or illiteracy or any other disabling
factor, he is not able to engage a counsel of his choice, it becomes the
duty of the court to provide him appropriate and meaningful legal aid
at the State expense. What is meant by the duty of the State to ensure
a fair defence to an accused is not the employment of a defence
counsel for namesake. It has to be the provision of a counsel who
defends the accused diligently to the best of his abilities. While the
quality of the defence or the caliber of the counsel would not militate
against the guarantee to a fair trial sanctioned by Articles 21 and 22
resply of the Constitution, a threshold level of competence and due
diligence in the discharge of his duties as a defence counsel would
certainly be the constitutional guaranteed expectation. The presence of
counsel on record means effective, genuine and faithful presence and
not a mere farcical, sham or a virtual presence that is illusory, if not
fraudulent.
120.Article 39A of the Constitution speaks about free legal aid which
reads thus:
“39A. Equal justice and free legal aid.—The State shall
secure that the operation of the legal system promotes justice,
on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or
other disabilities.”
121.Section 304 of the CrPC refers to legal aid to the accused at State
expenses in certain cases which reads thus:
“304. Legal aid to accused at State expense in certain
cases.—(1)Where, in a trial before the Court of Session, the
accused is not represented by a pleader, and where it
appears to the Court that the accused has not sufficient
means to engage a pleader, the Court shall assign a pleader
for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the
State Government, make rule providing for—
(a) the mode of selecting pleaders for defence under sub
section (1);
(b) the facilities to be allowed to such pleaders by the
Courts;
(c) the fee payable to such pleaders by the Government,
and generally, for carrying out the purposes of sub
section (1).
(3) The State Government may, by notification, direct that, as
from such date as may be specified in the notification the
provisions of subsections (1) and (2) shall apply in relation to
any class of trials before other Courts in the State as they
apply in relation to trials before the Courts of Session.”
122.Under Section 9 of the Legal Services Authorities Act, 1987, the
District Legal Services Authorities are constituted for every District in
the State to exercise powers and perform functions conferred on, or
assigned to, the District Authority under the said Act.
123.This Court in para 13 of the judgment reported in Kishore
Chand v. State of Himachal Pradesh, (1991) 1 SCC 286, held thus:
“13. Though Article 39A of the Constitution provides
fundamental rights to equal justice and free legal aid and
though the State provides amicus curiae to defend the
indigent accused, he would be meted out with unequal
defence if, as is common knowledge the youngster from the
bar who has either a little experience or no experience is
assigned to defend him. It is high time that senior counsel
practising in the court concerned, volunteer to defend such
indigent accused as a part of their professional duty. If these
remedial steps are taken and an honest and objective
investigation is done, it will enhance a sense of confidence of
the public in the investigating agency.”
124.This Court, in the case of Zahira Habibullah Sheikh (5) and
Another v. State of Gujarat and Others, reported in (2006) 3 SCC
374, has observed in paragraphs 30, 35, 38 and 39 as under:
“30. Right from the inception of the judicial system it has
been accepted that discovery, vindication and establishment
of truth are the main purposes underlying existence of the
courts of justice. The operative principles for a fair trial
permeate the common law in both civil and criminal contexts.
Application of these principles involves a delicate judicial
balancing of competing interests in a criminal trial: the
interests of the accused and the public and to a great extent
that of the victim have to be weighed not losing sight of the
public interest involved in the prosecution of persons who
commit offences.
x x x x
35. This Court has often emphasised that in a criminal case
the fate of the proceedings cannot always be left entirely in
the hands of the parties, crime being public wrong in breach
and violation of public rights and duties, which affects the
whole community as a community and is harmful to the
society in general. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the
society and it is the community that acts through the State
and prosecuting agencies. Interest of society is not to be
treated completely with disdain and as persona non grata.
The courts have always been considered to have an
overriding duty to maintain public confidence in the
administration of justiceoften referred to as the duty to
vindicate and uphold the “majesty of the law”. Due
administration of justice has always been viewed as a
continuous process, not confined to determination of the
particular case, protecting its ability to function as a court of
law in the future as in the case before it. If a criminal court is
to be an effective instrument in dispensing justice, the
Presiding Judge must cease to be a spectator and a mere
recording machine by becoming a participant in the trial
evincing intelligence, active interest and elicit all relevant
materials necessary for reaching the correct conclusion, to
find out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it
serves. The courts administering criminal justice cannot turn
a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and
standing of the judges as impartial and independent
adjudicators.
x x x x
38. Failure to accord fair hearing either to the accused or the
prosecution violates even minimum standards of due process
of law. It is inherent in the concept of due process of law, that
condemnation should be rendered only after the trial in which
the hearing is a real one, not sham or a mere farce and
pretence. Since the fair hearing requires an opportunity to
preserve the process, it may be vitiated and violated by an
over hasty stagemanaged, tailored and partisan trial.
39. The fair trial for a criminal offence consists not only in
technical observance of the frame, and forms of law, but also
in recognition and just application of its principles in
substance, to find out the truth and prevent miscarriage of
justice.”
125.In Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3
SCC 581, it is observed that, the Sessions Judge should view with
sufficient seriousness the need to appoint State Counsel for
undefended accused in grave cases. Indigence should never be a
ground for denying fair trial or equal justice. Therefore, particular
attention should be paid to appoint competent advocates, equal to
handling the complex cases, not patronising gestures to raw entrants
to the Bar. Sufficient time and complete papers should also be made
available to the advocate chosen so that he may serve the cause of
justice with all the ability at his command, and the accused also may
feel confident that his counsel chosen by the court has had adequate
time and material to defend him properly.
126.This case provides us an opportunity to remind the learned
District and Sessions Judges across the country conducting sessions
trials, more particularly relating to serious offences involving severe
sentences, to appoint experienced lawyers who had conducted such
cases in the past. It is desirable that in such cases senior advocate
practising in the trial court shall be requested to conduct the case
himself or herself on behalf of the undefended accused or at least
provide good guidance to the advocate who is appointed as amicus
curiae or an advocate from the legal aid panel to defend the case of the
accused persons. Then only the effective and meaningful legal aid
would be said to have been provided to the accused.
127.This Court, in the case of Madhav Hayawadanrao
Hoskot v. State of Maharashtra, reported in (1978) 3 SCC 544, had
emphasized upon the need of securing the competent and efficient
legal services for a prisoner who is standing trial in a criminal case or
for the commission of alleged offence. This Court, in paragraphs 14,15
and 18 of the above judgment, held as under:
“14. The other ingredient of fair procedure to a prisoner,
who has to seek his liberation through the court process is
lawyer's services. Judicial justice, with procedural
intricacies, legal submissions and critical examination of
evidence, leans upon professional expertise; and a failure of
equal justice under the law is on the cards where such
supportive skill is absent for one side. Our judicature,
moulded by AngloAmerican models and our judicial
process, engineered by kindred legal technology, compel the
collaboration of lawyerpower for steering the wheels of
equal justice under the law. Free legal services to the needy
is part of the English criminal justice system. And the
American jurist, Prof. Vance of Yale, sounded sense for India
too when he said:
What does it profit a poor and ignorant man that
he is equal to his strong antagonist before the law if
there is no one to inform him what the law is? Or that
the courts are open to him on the same terms as to all
other persons when he has not the wherewithal to pay
the admission fee?
15. Gideon's trumpet has been heard across the Atlantic.
Black, J. there observed:
Not only those precedents but also reason and
reflection require us to recognise that in our adversary
system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a
fair trial unless counsel is provided for him. This seems
to us to be an obvious truth. Governments, both State
and Federal, quite properly spend vast sums of money
to establish machinery to try defendants accused of
crime. Lawyers to prosecute are everywhere deemed
essential to protect the public’s interest in an orderly
society. Similarly, there are few defendants charged
with crime who fail to hire the best lawyers they can get
to prepare and present their defences. That government
hires lawyers to prosecute and defendants who have
the money hire lawyers to defend are the strongest
indications of the widespread belief that lawyers in
criminal courts are necessities, not luxuries. The right of
one charged with crime to counsel may not be deemed
fundamental and essential to fair trial in some
countries, but is in ours. From the very beginning, our
state and national constitutions and laws have laid
great emphasis on procedural and substantive
safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands
equal before the law. This noble idea cannot be realised
if the poor man charged with crime has to face his
accusers without a lawyer to assist him.
x x x x
18. The American Bar Association has upheld the
fundamental premise that counsel should be provided in the
criminal proceedings for offences punishable by loss of
liberty, except those types of offences for which such
punishment is not likely to be imposed. Thus, in America,
strengthened by the Powell, Gideon and Hamlin cases,
counsel for the accused in the more serious class of cases
which threaten a person with imprisonment is regarded as
an essential component of the administration of criminal
justice and as part of procedural fairplay. This is so without
regard to the sixth amendment because lawyer participation
is ordinarily an assurance that deprivation of liberty will not
be in violation of procedure established by law. In short, it is
the warp and woof of fair procedure in a sophisticated,
legalistic system plus lay illiterate indigents aplenty. The
Indian sociolegal milieu makes free legal service, at trial
and higher levels, an imperative processual piece of criminal
justice where deprivation of life or personal liberty hangs in
the judicial balance.”
128.In the aforesaid context, we may refer to the National Legal
Services Authority (Free and Competent Legal Services) Regulations,
2010, more particularly, the Regulation15, which reads thus:
“15. Special engagement of senior advocates in
appropriate cases.
(1) If the Monitoring and Mentoring Committee or Executive
Chairman or Chairman of the Legal Services Institution is of
the opinion that services of senior advocate, though not
included in the approved panel of lawyers, has to be
provided in any particular case the Legal Services Institution
may engage such senior advocate.
(2) Notwithstanding anything contained in the State
regulations, the Executive Chairman or Chairman of the Legal
Services Institution may decide the honorarium of such senior
advocate.”
129.This Court in Subhash Chand v. State of Rajasthan reported
in (2002) 1 SCC 702 in para 26, while allowing the appeal and
acquitting the accused appellant therein under Sections 302 and
376(2)(f) of the IPC, observed as under:
“26. Before parting with the case we would like to place on
record, an observation of ours, touching an aspect of the
case. There are clueless crimes committed. The factum of a
cognizable crime having been committed is known but neither
the identity of the accused is disclosed nor is there any
indication available of the witnesses who would be able to
furnish useful and relevant evidence. Such offences put to
test the wits of an investigating officer. A vigilant
investigating officer, well versed with the techniques of the
job, is in a position to collect the threads of evidence finding
out the path which leads to the culprit. The ends, which the
administration of criminal justice serves, are not achieved
merely by catching hold of the culprit. The accusation has to
be proved to the hilt in a court of law. The evidence of the
investigating officer given in the court should have a rhythm
explaining step by step how the investigation proceeded
leading to detection of the offender and collection of evidence
against him. This is necessary to exclude the likelihood of
any innocent having been picked up and branded as a culprit
and then the gravity of the offence arousing human
sympathy persuading the mind to be carried away by
doubtful or dubious circumstances treating them as of
“beyond doubt” evidentiary value.”
[Emphasis supplied]
130. In the result, the appeals are allowed. The conviction of the
accused appellant under Section 302 of the IPC is set aside. He is
acquitted of the charge framed against him. He shall be set at liberty
forthwith if not required to be detained in connection with any other
offences.
131.Pending application, if any, also stands disposed of.
………………………….CJI.
(UDAY UMESH LALIT)
…..……………………….J.
(S. RAVINDRA BHAT)
…..……………………….J.
(J.B. PARDIWALA)
NEW DELHI;
OCTOBER 13, 2022.
ITEM NO.1503 COURT NO.9 SECTION II
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 64-65/2022
RAMANAND @ NANDLAL BHARTI Appellant(s)
VERSUS
STATE OF UTTAR PRADESH Respondent(s)
(IA No. 109475/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT)
Date : 13-10-2022 These matters were called on for pronouncement of
judgment today.
For Appellant(s) Mr. S. Niranjan Reddy, Sr. Adv.
Mr. Vibhor Jain, Adv.
Ms. Stuti Rai, Adv.
Mr. Sahil Raveen, Adv.
Ms. Akhila Palem, Adv.
Mr. Mahfooz Ahsan Nazki, AOR
Mr. Polanki Gowtham, Adv.
Ms. Rajeswari Mukherjee, Adv.
Ms. Niti Richhariya, Adv.
For Respondent(s) Mr. Adarsh Upadhyay, AOR
Mr. Abhishek Chaudhary, Adv.
Mr. Anurag Kishore, Adv.
Mr. Amit Singh, Adv.
Mr. Aman Pathak, Adv.
Mr. Ajay Prajapati, Adv.
Hon’ble Mr. Justice J. B. Pardiwala, pronounced the reportable
judgment of the Bench comprising Hon’ble the Chief Justice of
India, Hon’ble Mr. Justice S. Ravindra Bhat and His Lordship.
The appeals are allowed in terms of the signed reportable
judgment.
The conviction of the accused appellant under Section 302 of
the IPC is set aside. He is acquitted of the charge framed against
him. He shall be set at liberty forthwith if not required to be
detained in connection with any other offences.
Pending application, if any, also stands disposed of.
(SNEHA DAS) (RANJANA SHAILEY)
SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)
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