TMI Blog2012 (5) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ed No. 1 was married in the year 1997 and was residing in the servant quarters of the said bungalow. In fact, he had been given two servant quarters. Accused No. 1 was arrogant, evasive and in the habit of revolting against Smt. Prabha Seth who was a strict person and demanded better performance of duties by accused No. 1. The wife of accused No. 1, on the occasion of dussehra festival, went to her native place in Bihar, to which all the accused belong. After her departure, accused No. 1 became more arrogant. Nearly a week before the occurrence, Smt. Prabha Seth had scolded accused No. 1 for his shabby looks and had asked him to have a haircut. This aggravated the grudge of accused No. 1 towards her. On the very next day, accused No. 1 met his elder brother's son, Munna Kumar Upadhyay (Accused No. 2), his brother-in-law, Maheshwar Upadhyay (Accused No. 4) and their friend, Monu Singh (Accused No. 3). As already noticed, all of them belong to the same village in the State of Bihar. Accused No. 3 was working in Bharat Steels. Because of the serious grudge of accused No. 1 towards Smt. Prabha Seth, they all planned to kill the entire family of Shri Baldevraj Seth and to decamp wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused No. 1 directed her to enter from the back door. The moment she stepped in, accused Nos. 2 and 4 held her and accused No. 1 cut her throat with a knife, as a result of which she collapsed. Her body was then shifted to the bathroom. After killing these three members of the family, they ran towards the bedroom, opened the almirah, took gold ornaments like necklace, chains, rings, wrist watch and net cash of ₹ 44,560/-, which they distributed among themselves. 4. Accused No. 3, Monu Singh was bleeding as a result of the bullet injury that he suffered. The other accused took him to the premises of Bharat Steel, where he was working as a security guard. There., one Shashidhar Pandey advised them to take accused No. 3 to a doctor. The doctor, after observing the injury of accused No. 3, asked them to shift the patient to Gandhi Hospital, Secunderabad. In fact, the doctor helped them to get admitted and receive the treatment, accused No. 1 gave ₹ 2,000/- to the said doctor for medical expenses and after giving that money, accused Nos. 1, 2 and 4 left the place. Accuse No. 1 sent away Pandu, the watchman, who had come to the residence of Baldevraj Seth, on the pretex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the engine No. and chassis No. of the vehicle and thereby traced the owner. The dog squad was also put into service. In the meanwhile, the Chief Engineer along with other senior officers visited the spot and informed the police that one Meenal Seth, PW-12, the other daughter of Baldevraj Seth, was on the way from Delhi to Hyderabad in Rajdhani Express and had telephoned them stating that she was calling the phone numbers of the family members, but no one was responding. Thus, he had sent his peon to the house of Baldevraj Seth. However, accused No. 1 had given him the same excuse that he had given to the neighbours that the family had gone out. In the morning, he had been told that the family had not returned. The dead bodies, on the basis of the articles recovered from the car itself, were identified. After establishing the identity of the deceased, the investigating officer prepared the inquest report and started the investigation. 6. During the course of investigation, the investigating officer recorded the statements of different witnesses. From the very initial stages, accused No. 1 appears to have been the prime suspect. It was for this reason that Pandu, PW8 had informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and 27 of Arms Act. Against - A2 Under Section 302, 302 R/w 34, 201, 435, 380 or alternatively 411 Indian Penal Code. Against - A3 Under Section 302, 380 or alternatively 411 Indian Penal Code and 25(1)(a) and 27 of Arms Act. Against - A4 Under Section 302, 302 R/w 34, 201, 380 or alternatively Under Section 411 Indian Penal Code. Against - A5 Under Section 201, 380 or alternatively Under Section 411 Indian Penal Code. 7. They were tried in accordance with law and by a very detailed judgment dated 24th January, 2007, the trial court found all the accused guilty of different offences as charged and punished them as follows: a) A1 (Chandra Bushan Upadhyay) is sentenced to death for the offence Under Section 302 Indian Penal Code. A1 is also sentenced to suffer R.I. for 3 years each for the other offences Under Section s. 201, 435, 411 Indian Penal Code and Section 25(1) (a) and 27(1) of Arms Act. All these sentences shall run concurrently. b) A2 (Munna Kumar Upadhyay @ Munna Upadhyaya) is sentenced to suffer imprisonment for life for the offence Under Section 302 R/w 34 Indian Penal Code. He is also sentenced to suffer RI for 3 years each for the offences Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is of very weak nature. The prosecution has not been able to establish the chain of circumstances which undoubtedly points only towards the guilt of the accused. B. The High Court has entirely based its order of conviction on the finger prints found at the place of occurrence and there is no evidence as to how the finger prints of the accused persons were collected by the Police and how they were dispatched to the forensic laboratory for the purposes of comparison. The vital link in the evidence relating to finger prints is missing and as such, the judgment of the High Court is liable to be set aside. C. The test identification parade, firstly, was not held in accordance with law and secondly, it was held after considerable unexplained delay, that too, when the photographs of the accused had been published in the newspapers. Thus, the courts could not have relied upon the identification parade in returning a finding of guilt against the accused. D. Lastly, the contention is that the acquittal of accused Nos. 3 and 4 by the High Court on merits is clear indication that the prosecution has failed to prove its case beyond reasonable doubt. Thus, the High Court ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Govind Nargundkar v. State of M.P. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P. and Ram Gopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: (AIR pp. 345-46, para 10) 10.... 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 consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een fully established on record by the statements of PW-3 to PW-8 and PW-12, Meenal Seth, daughter of Baldevraj Seth. 12. The identity of the deceased persons as well as the connection of accused No. 3 with the commission of crime has duly been proved by Ext. P-96, the DNA Report from the Forensic Science Laboratory Hyderabad, Andhra Pradesh which was specifically recorded and supported by the evidence of PW-39, Dr. G.V. Jagdamba. According to this witness, he had received the requisition from the Commissioner of Police, Cyberabad for performing DNA test. He stated that he conducted the DNA test on the items which were received by him. The analysis was taken up by organic extraction process and thereby he could establish the identity of deceased, Kanika Seth and Prabha Seth as also the involvement of Monu Singh, accused No. 3 after examination of the submitted blood samples. 13. In fact, there can be no doubt as to the fact that the accused No. 1 was working as domestic servant of Baldevraj Seth and living in the servant quarters. The reason for commission of crime, as per the case of the prosecution, was the persistent grudge of accused No. 1 towards Prabha Seth, the decease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly he washed the floor of the hall with an acid and asked me to go away, in an angry mood. Then I returned home. As soon as I came out of the house, Al closed the rear door from inside. I returned to my house. On the next day i.e. on 18-03-2003 at about 7.30 a.m., I was returning home by purchasing milk from a nearby milk booth. I found A1 and the wife of PW3 talking with each other. She was asking A1 whether B.R. Seth and his family members had come back or they gave any information through telephone, for which A1 replied her that Seth and his family members have not come back. I returned to my house. At about 11.00 a.m. on 18-03-2003, police officials and railway official came to the official bungalow of B.R. Seth. Then I came to know about the death of B.R. Seth and his family. 17. Besides all this is the statement of PW-12, the sole surviving member of Seth family, which has fully corroborated the statement of all these witnesses, as well as that of neighbour PW3. She was travelling from Delhi to Secunderabad by train. A number of times, she claims to have called up the numbers of her father and other family members, but none responded. Upon this, she had rang up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial. Smell of petrol was also present at the scene and this fact stood confirmed by the statement of PW48, the Investigating Officer. Thus, it is clear that accused No. 2 had taken the petrol from the petrol pump and used it, along with other accused, for the purpose of putting the car and the dead bodies of the deceased persons on fire. 19. PW45, another forensic expert, had found human blood in the rooms where the crime was committed and also on the items which were sent to him for his opinion. The presence of human blood (B+) on these items, including the clothes which were sent for serological examination, clearly indicates that in that house, murder of some human being had been committed. Identities of those human beings stands completely established not only by expert evidence but by the evidence of the neighbours also. 20. The prosecution had also examined the ballistics expert as PW-37. He expressed his opinion that item No. 2 was a live cartridge and he opined that it was a country made pistol with 7.62 MM calibre and that the cartridges recovered had been fired from the recovered pistol. The cartridges were recovered from the bungalow while the pistol and live ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the site, never collected the finger prints or that the finger prints of the accused were never sent by the police to him. We may also notice that, even to the investigating officer, this suggestion was never put. The attempt on behalf of the accused to object to the evidence of the finger prints on the ground that the investigating officer has not told in his examination-in-chief that he had taken the finger prints of the accused and sent them to the expert does not carry much weight in view of the above documentary, ocular and expert evidence. It was expected of the Investigating Officer to make a statement in that behalf, but absence of such statement would not weight so much against the prosecution that the court should be persuaded to reject the evidence of PW38 along with the clinching evidence of Ext. P-52, P-72 and P-73 respectively. 24. Equally without merit is the submission on behalf of the Appellant that the finger print could be there upon the almirah in the normal course of business, as accused No. 1 was the domestic servant working in the bungalow. What is important is that the presence of finger prints of accused No. 2 found in the house and particularly on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw him coming out of the house at the relevant point of time with the bag in his hand. The fingerprint of the Appellant found on the handle of the almirah in the room of the deceased proves his presence in the house of the deceased and that he and no other caused Jayashri's death after having violent sexual intercourse with her against her will. 28. In light of the above, we have no hesitation in rejecting this contention of the Appellant. The prosecution has by other evidence, clearly been able to establish the physical contact between the accused and the articles within the almirah, and therefore, the almirah door also. 29. In the present case, as far as the deceased persons are concerned, because of the burnt condition of bodies, there could be no other evidence of cause of death except identification of the deceased persons, which has already been established by the prosecution. The accused persons, particularly, accused Nos. 1, 2 and 3 have suffered physical injury. Accused No. 3 had even suffered bullet injury which has been proved on record by the statement of PW-46, the doctor, as also PW-33 and PW-43, all doctors. PW-18, who was running a clinic in the name of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, as these documents had been prepared by PW33 in the normal course of her business. Even the accused do not dispute that they were given treatment by the doctor in relation to these injuries. Thus, it was for the accused to explain this aspect. This Court has had the occasion to discuss the effect of extra-judicial confessions in a number of decisions. 35. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that an extra-judicial 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. 36. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. 37. Again, in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that there is no doubt that conviction can be based on extrajudicial confession, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41: AIR paras 41 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B. 30. In the present case, the extrajudicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872. 41. Dealing with the situation of retraction from the extra judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under: It appears therefore, that the Appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identification parade is to provide corroborative evidence and is more confirmatory in its nature. No other infirmity has been pointed out by the Learned Counsel appearing for the Appellant, in the holding of the identification parade. The identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number of persons who had joined the identification parade. There is nothing on record before us to say that the photographs of the accused were actually printed in the newspaper. Even if that be so, they were printed months prior to the identification parade and would have lost their effect on the minds of the witnesses who were called upon to identify an accused. 46. However, we hasten to clarify that it is always appropriate for the investigating agency to hold identification parade at the earliest, in accordance with law, so that the accused does not face prejudice on that count. We may refer to the judgment of this Court in a more recent judgment in the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], where law in relation to purpose of holding an identification parade, the effect of dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case is that none of the accused, particularly accused No. 2, offered any explanation during the recording of their statements under Section 313 Code of Criminal Procedure. It is not even disputed before us that the material incriminating evidence was put to accused No. 2 while his statement under Section 313 Code of Criminal Procedure was recorded. Except for a vague denial, he stated nothing more. In fact, even in response to a question relating to the injuries that he had suffered, he opted to make a denial, which fact had duly been established by the statements of the investigating officers, doctors and even the witnesses who had seen him immediately after the crime. It is a settled law that the statement of Section 313 Code of Criminal Procedure is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. In this regard, we may refer to some recent judgements of this Court. This Court in the case of Asraf Ali v. State of Assam [(2008) 16 SCC 328] has observed as follows: 21. Section 313 of the Code casts a duty on the court to put in an en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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