TMI Blog2022 (10) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... oes 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 DIXIT VERSUS STATE OF MAHARASHTRA [ 1980 (12) TMI 194 - SUPREME COURT] , 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. It is by far now well settled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 21st 22nd of January, 2010 while the wife and four children were sleeping in the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 wife daughters 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 Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2010 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. PW 1 Shambhu Raidas 2. PW 2 Chhatrapal Raidas 3. PW 3 Babu Ram Hans 4. PW 4 Ram Kumar 5. PW 5 Dr. A.K. Sharma 6. PW 6 S.I. Uma Shankar Mishra 7. PW 7 Inspector Yogendra Singh 8. PW 8 Dr. S.P. Singh 9. PW 9 Dr. Ankit Kumar Singh 10. PW 10 H.M. Dhani Ram Verma 14. The prosecution also adduced the following documentary evidence: S.No. Documentary Evidence 1. Tahreer /Written Complaint [Ex. Ka 1] 2. Post mortem report of deceased Laxmi [Ex. Ka 2] 3. Post mortem report of deceased Kajal [Ex. Ka 3] 4. Post mortem report of deceased Chhoti @ Guddi [Ex. Ka 4] 5. Discovery memorandum of murder weapon and clothes [Ex. Ka 5] 6. Site plan of crime scene [Ex. Ka 6] 7. Site plan of discovery of murder weapon [Ex. Ka 7] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 22nd 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 blood stained clothes at the instance of the accused appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 PW 9, Dr. Ankit Kumar Singh has issued a medical certificate Ext. 44 stating the nature of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused appellant thereafter started warming his body. On seeing this, the PW 1 got annoyed and told the accused appellant that how could he sit beside the fire when his wife and children had been killed. The PW 1, 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 PW 1 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 PW 1 has deposed that his house is at a distance of one ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 PW 2 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 Ramanandaccused appellant was the assailant. 33. What emerges from the evidence of the PW 2 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 PW 2 is that Ramanand had visited his house also at 7 o clock in the morning. The PW 2 also saw Pratap and PW 1, Shambhu Raidas at the house of the accused appellant trying to douse the fire with water. One important feature of the deposition of the PW 2 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 PW 3, Babu Ram Han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had visited his house at 6:30 in the morning. 37. What emerges from the evidence of the PW 4 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 PW 4. We shall assign reasons a little later as to why we are not ready to believe the PW 4, Babu Ram Hans. 38. The prosecution has examined the PW 5, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the PW 9, 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 in charge 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 three Judge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the weapon of offence (Banka) and his blood stained 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 PW 2, 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 blood stained clothes. The weapon of offence and the blood stained 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 lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW 2, Chhatarpal Raidas was examined by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 villageBasadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lock up, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd as Exhibit Ka 5 . [Emphasis supplied] 59. We shall also look into the oral evidence of the PW 6, Uma Shankar Mishra who at the relevant point of time was serving as a Sub Inspector Chowki In charge Bahjam, Police Station. It appears that the PW 6 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 Station Dhaurahara, 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 In charge 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 pant shirt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Paragraph 71 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conceali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson, 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace 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 accused appellants (Exts. P 15 and P 16) 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 PW 3, 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 PW4, 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 PW 4, Ram Kumar then according to him at the relevant point of time he was a member of the District Panchayat. According to PW 4, 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 PW 4, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in a jeep. It took half an hour for the inspector to arrive at the spot. It was about 8 9 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 PW 2 and also before the PW 4 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 confessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 29 30) 29. There is no absolute rule that an extra judicial confession 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 [(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 fact finder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upper caste (Brahmins) as to how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esence 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 non explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non explanation 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swers to those are binding to the accused. 118. Any defence counsel with a reasonable standing at the Bar is expected to know that cross examination 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 well settled 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1991) 1 SCC 286, held thus: 13. Though Article 39 A 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 crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 stage managed, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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