http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

CASE NO.:

Appeal (crl.) 279-281 of 1995

PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

BABU RAM

DATE OF JUDGMENT: 11/04/2000

BENCH:

K.T. THOMAS & Y.K. SABHARWAL

JUDGMENT:

THOMAS, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Whoever was the assailant it was a hatrick for him when

three persons of the same house were slaughtered in one

operation. If respondent was the assailant it was a case of

patricide-cum-matricide-cum-fratricide. In the realm of

homicidal crimes such episodes rarely happen. So the task

is heavy for the prosecution to carry conviction of the

truth of the allegation against the respondent. That

perhaps may be the factor which influenced the High Court in

giving benefit of doubt to this respondent.

Babu Ram - the respondent was found by the trial court

to have committed such a triple murder of his father, mother

and brother and buried the corpses inside their own

courtyard. The Sessions Judge chose the extreme penalty for

him for the offence under Section 302 IPC. But he got a

clean chit from the High Court of Allahabad when a Division

Bench exonerated him of the offence. The State of U.P. now

challenges the order of acquittal in this appeal filed by

special leave.

The victims of the triple slaughter were Devi Dayal and

his wife Champa Devi and their son Sitaram. The ill- fated

parents Devi Dayal and Champa Devi had 5 children - 3 sons

and 2 daughters. Respondent Babu Ram was the eldest among

the children and Sitaram was the second son. The third

among the sons - Radheshyam - was not living with the

parents during the tragic night. Two daughters of the

parents were Tarawati and Chakrawati. Both of them were

married away and they were living with their husbands in

their respective nuptial homes. Devi Dayal and Champa Devi

were living in their house at Kuri Lawa, Barabanki. Babu

Ram and his brother Sitaram were also staying with them in

the same house. The third son Radheyshyam used to live in

the house of his sister Chakrawati. Prosecution case is

that Babu Ram was pestering his parents to part with a

portion of their landed property in his favour but that

demand was not acceded to. He, therefore, turned against

his parents and the wicked thought of eliminating them

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

burgeoned in his mind in due course of time. He nurtured it

and it was on 25.11.1990 that he could accomplish his plan.

According to the prosecution case the respondent did the

operation extermination with the help of 4 other companions

and killed not only his parents but the other remaining

brother who was staying with them. He buried the dead

bodies in a pit on the verandah of his house and covered the

pit with red sand and straws, to make it appear differently.

The further case of the prosecution is that respondent

held out to all others concerned that his parents had gone

to a temple with his brother Sitaram on the previous day and

that they did not return yet. PW-1 Ram Saharey (brother of

Devi Dayal) expressed doubt as to the said version of the

respondent. The same doubt was expressed by respondent's

sisters and brothers-in-law also. They therefore confronted

the respondent with some inconvenient queries and then the

respondent had burst out and made a shrift of the whole

episode to his listeners. When he was asked to spot out the

place where the corpses were interred he moved to the spot

and disinterred all the three dead bodies.

Devi Dayal's brother (Ram Sarahey) went to Mohammedpur

Police Station and lodged a complaint at 11.30 A.M. and on

its basis an FIR was made. PW-5 Police Officer reached the

house without much delay and during interrogation of the

respondent he knew about the concealment of two spades of

different lengths. They were recovered by the police.

The case was sought to be built up only on the basis of

circumstantial evidence. Prosecution presented the

following circumstances against the respondent: (1)

Appellant and three murdered persons were the only inmates

of the house on the crucial night. All the deceased were

found absent in the house on 25.11.1990. (2) Appellant told

the neighbours as well as his kith and kin that all the 3

deceased persons had gone to attend the festival in a

particular temple. (3) later, when he was cornered, he told

his siblings that the 3 deceased were killed by him in

association with 4 other persons and the dead bodies were

buried in a pit dug on the verandah. (4) Respondent pointed

out the spot wherefrom the dead bodies were disinterred.

(5) When PW-5 questioned the respondent he told him about

concealment of the spades and a bloodstained cloth.

If the prosecution was able to establish the above

circumstances with reliable evidence there is no scope for

contending that the cumulative effect of those circumstances

would be insufficient to point to the appellant as the

culprit. So the task of the prosecution was to establish

such circumstances which are enumerated above. No doubt

Pw-1 - Ram Saharey who lodged the FIR turned hostile and so

was PW-2 Ram Sumiran who was cited to speak to an extra

judicial confession. So their evidence became unavailable

to the prosecution. However, PW-6 (Tarawati - sister of the

respondent) and PW-7 (brother-in- law of the respondent)

stuck to their version, the substance of which is the

following: On hearing the news about the missing of all the

three deceased from the house the two witnesses reached the

house along with the other remaining brother Radheyshyam

(who was living with PW-6 Tarawati then). When respondent

Babu Ram was confronted with the query as to how the

deceased could have gone to attend the festival of the

temple when they had never gone to such a place earlier, he

could not withstand such cross questions and he wept

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

bitterly, and thereafter he owned that the three were

murdered by him. Respondent then took those persons to the

spot where the dead bodies were buried and disinterred those

bodies after removing mud and bundles of rice crops heaped

thereon.

Close to the above evidence is the testimony of PW-5 the

Station House Officer of the local police. What has come

out materially in his evidence is that the accused told the

police that he had concealed one Kudal (a small spade) and

Fawara (a still larger spade) and another vestment, and

those articles were recovered by the police on being lead to

the spot where they were concealed.

The Sessions Judge found that the said items of evidence

were reliable but the Division Bench of the High Court

expressed reservation in acting on the evidence of the same

persons. The premier reason advanced by the Division Bench

against the prosecution was the failure of the prosecution

to make out a strong motive. Learned judges have stated

thus on that aspect: "Existence of motive may not be very

much material in a case which is based on direct evidence as

it may be argued that motive is hidden in the heart and mind

of the accused, and it would be difficult for the

prosecution in every case to extract the said motive and to

bring the same on record. However, in a case which is based

on circumstantial evidence, motive plays an important role

and absence of motive would go a long way to weaken the

prosecution case......... In this case the accused has been

charged for committing murders of his parents and younger

brother. The only whisper made in this case on behalf of

the prosecution was that the accused wanted his father to

give his share in the property but his father had told him

that he would do so after marriage of his daughters and the

younger son. There is, however, no convincing evidence on

this point to hold that the accused wanted partition to

which his father did not agree."

We are unable to concur with the legal proposition

adumbrated in the impugned judgment that motive may not be

very much material in cases depending on direct evidence

whereas motive is material only when the case depends upon

circumstantial evidence. There is no legal warrant for

making such a hiatus in criminal cases as for the motive for

committing the crime. Motive is a relevant factor in all

criminal cases whether based on the testimony of eye

witnesses or circumstantial evidence. The question in this

regard is whether a prosecution must fail because it failed

to prove the motive or even whether inability to prove

motive would weaken the prosecution to any perceptible

limit. No doubt, if the prosecution proves the existence of

a motive it would be well and good for it, particularly in a

case depending on circumstantial evidence, for, such motive

could then be counted as one of the circumstances. However,

it cannot be forgotten that it is generally a difficult area

for any prosecution to bring on record what was in the mind

of the respondent. Even if the Investigating Officer would

have succeeded in knowing it through interrogations that

cannot be put in evidence by them due to the ban imposed by

law.

In this context we would reiterate what this court has

said about the value of motive evidence and the consequences

of prosecution failing to prove it, in Nathuni Yadav vs.

State of Bihar {1998 (9) SCC 238} and State of Himachal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

Pradesh vs. Jeet Singh {1999 (4 SCC 370}. Following

passage can be quoted from the latter decision:

"No doubt it is a sound principle to remember that every

criminal act was done with a motive but its corollary is not

that no criminal offence would have been committed if the

prosecution has failed to prove the precise motive of the

accused to commit it. When the prosecution succeeded in

showing the possibility of some ire for the accused towards

the victim, the inability to further put on record the

manner in which such ire would have swelled up in the mind

of the offender to such a degree as to impel him to commit

the offence cannot be construed as a fatal weakness of the

prosecution. It is almost an impossibility for the

prosecution to unravel the full dimension of the mental

disposition of an offender towards the person whom he

offended."

The present is not a case of complete dearth of motive.

Respondent himself said about the motive and PW-6 confirmed

it. Such a motive may appear to some persons as inadequate

for liquidating once own parents. But any rancour

burgeoning in the mind of an offender can foment wicked

thoughts which may even flame up to flash point. So we are

unable to concur with the High Court's view that the motive

factor has weakened the prosecution case.

The Division Bench of the High Court hesitated to place

reliance on the circumstance relating to the disinternment

of three dead bodies from the verandah for which learned

judges advanced the following reasons: First is that in the

site plan prepared by the Investigating Officer he did not

give particulars or details of that place. Second is that

the Investigating Officer did not mention about the amount

of "mud and morang" noticed near the pit. The third is he

did not take into custody the wooden planks or the mud from

the said place. The last is he did not indicate in the site

plan that blood was found at that place nor did he take the

bloodstained earth therefrom. After highlighting the above

lapses of the Investigating Officer the Division Bench

concluded thus: "These omissions would, therefore, in our

opinion clearly negative the theory set up by the

prosecution that three dead bodies were buried in the

verandah of the house of the accused. By examining the

statements of these two witnesses, namely, Tarawati and

Shital Prasad, in the light of these circumstances, we would

not be able to persuade ourselves to accept the statements

of these two witness thought they are the sister and

brother-in-law of the accused."

The above reasons of the Division Bench for dropping

down such a sturdy circumstance (disinterment of the three

dead bodies at the instance of the respondent) are flimsy

and tenuous. It is apparent that the Division Bench had

strained to ferret out some fragile grounds for sidelining

such a highly incriminating circumstance. The very approach

of the High Court in this regard does not merit approval.

It is not possible to understand the rationale of the

reasoning that if an Investigating Officer did not instruct

the person who drew up the site plan to note down certain

details that would render the testimony of material

witnesses unreliable.

Regarding the circumstance that respondent had first

tried to mislead the people by saying that the three

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

deceased persons had gone to attend the temple festival, the

Division Bench commented that as the said version was not

believed by others as a probable version the respondent too

would not have chosen to give such a version to the

witnesses.

An offender who attempts to mislead others need not

necessarily arm with a ready foolproof explanation to any

cross-question from his listeners. Quite often such

offenders might try to advance explanations which strike

them momentarily when they are compelled to explain

incongruous aspects. If the explanation offered by the

offender appeared incredible to the listeners that is hardly

a ground to conclude that the offender would not have given

such explanation. That apart, in this case it is pertinent

to point out that even when the respondent was examined by

the trial court under Section 313 of the Code of Criminal

Procedure he has stated that the three deceased had gone to

the temple to participate in the festival. If that was his

own stand even at the last stage, what is the need for the

High Court to say that respondent would not have stated so

to PW-6 and PW-7?

The High Court has chosen to sidestep another

incriminating circumstance which is based on Section 27 of

the Evidence Act. On the strength of the statement made by

the respondent two spades and a bloodstained "sadari" were

recovered by the Investigating Officer. The reason advanced

by the Division Bench is the following:

"The Investigating Officer had come to know that the

accused had allegedly made extra judicial confession but for

the reasons best known to him he did not think it proper to

interrogate the accused, who was present throughout on the

spot. The accused was interrogated after midnight i.e. in

the night of 25/26.11.90 and on the basis of this statement

the Investigating Officer had recovered the articles,

mentioned above. This conduct of the Investigating Officer

creates grave doubt regarding the genuineness of extra

judicial confession as well as the statement leading to the

recovery of the articles."

We are unable to appreciate the said reasoning for

dispelling the evidence which otherwise is a circumstance

positively inculpating the respondent. An Investigating

Officer may have his own reasons for not interrogating the

accused as soon as he saw him. Court cannot overlook the

realities that Investigating Officer, who is otherwise a

police officer, has to attend to umpteen engagements and

even in the investigation of the particular case itself he

may have to observe a number of formalities, even it is

assumed that he had only one case to investigate at that

time.

The High Court in reaching a conclusion in favour of the

accused took into account the post-mortem findings regarding

the condition of the stomach of the three deceased.

"According to the prosecution, murder took place in the

night before 11 P.M. The post-mortem reports indicated that

the stomachs of the three deceased were empty, large and

small intestines contained faecal matter and gases."

According to the High Court, these facts would go to

indicate that "murder must have taken place in the very

early morning and not in the night."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

We bear in mind that prosecution has fixed up the time

of murder as 11 P.M. on surmises. Perhaps the actual time

of murder would have been later in the night or the last

meals would have been consumed by the deceased much earlier.

By any stretch of imagination, on the facts of this case,

absence of any food materials in the stomach cannot be

counted as a circumstance in favour of the assailant.

Shri N.P. Midha, learned counsel for the respondent,

submitted written submissions over and above the oral

arguments addressed by him. One of the contentions adverted

to by the learned counsel is pertaining to the evidence of

the defence witness (DW-1 Moharam Ali). Counsel contended

that if the evidence of DW-1 Moharam Ali can be believed it

is sufficient to shake the basic structure of the

prosecution evidence. Shri N.P. Midha invited our

attention to the following observations contained in the

decision of this Court in Dudh Nath Pandey vs. State of

Uttar Pradesh {1981 (2) SCC 166}: "Defence witnesses are

entitled to equal treatment with those of the prosecution;

and courts ought to overcome their traditional instinctive

disbelief in defence witnesses".

We may quote the succeeding sentence also from the said

decision for the sake of completion of the observations of

their Lordships on that score. It is this: "Quite often

they tell lies but so do the prosecution witnesses."

Depositions of witnesses, whether they are examined on

the prosecution side or defence side or as court witnesses,

are oral evidence in the case and hence the scrutiny thereof

shall be without any predilection or bias. No witness is

entitled to get better treatment merely because he was

examined as a prosecution witness or even as a court

witness. It is judicial scrutiny which is warranted in

respect of the depositions of all witnesses for which

different yardsticks cannot be prescribed as for those

different categories of witnesses.

In this case, DW-1 Moharam Ali claimed to have gone to

the house of the deceased on getting information about the

murders. He said that he found 3 dead bodies lying there

but also saw the police beating the accused. This evidence

of DW1, even if believed, would not affect the core of the@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

prosecution case or its evidence. Nonetheless, we may

consider his evidence from other angles.

In cross-examination DW1 said that he did not divulge

what he saw to any police officer or to any other officer.

He further admitted that he was affected by paralysis and

could not move from one place to another on his own. The

trial court declined to place any reliance on his evidence

and the High Court also did not consider it worthy of

credence. We also agree that the evidence of DW-1 could not

inspire confidence in judicial mind. Hence the said

evidence of DW1 does not affect the prosecution case at all.

The trial court rightly appreciated the circumstances

presented by the prosecution through the evidence and found

them reliable and on the basis of such circumstances reached

the conclusion that the respondent was responsible for the

murder of his parents and brother. We have no other option

but to interfere with the unmerited acquittal passed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

High Court. Hence we do so and restore the conviction

passed by the trial court. However, we do not impose the

extreme penalty which was chosen by the trial court. Hence

the respondent is sentenced to imprisonment for life under

Section 302 of the IPC.

We direct the Sessions Judge, Barabanki, to take

necessary steps to get the respondent back into custody if

he is not already in jail.