Babu vs State Of U.P.
- Court
- Allahabad High Court
Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1952 of 2022
Babu
…..Appellant
Versus
State of U.P.
…..Respondent
Counsel for the Appellant : Abhishek Mayank, Apsara, Arbaz
Danish, Kartikey Singh, Shashikala
Mani Tripathi, Upendra Kumar
Pushkar
Counsel for the Respondent : G.A.
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE SANJIV KUMAR, J.
(Delivered by Hon'ble J.J. Munir, J.)
1. This is an appeal by the convict Babu, who has been tried
and convicted by Mr. Anil Kumar Pandey, the then Additional
Sessions Judge, Court No.01, Mathura vide judgment and order
dated 25.01.2022 passed in Sessions Trial No. 817 of 2017 on a
charge of murder punishable under Section 302 of the Indian
Penal Code, 1860 (for short, 'IPC') and sentenced vide order
dated 27.01.2022 to imprisonment for life together with a fine in
the sum of Rs.30,000/-. In default, the convict has been ordered
to suffer six months of additional imprisonment.
2. Proceedings leading to the appellant’s arraignment and trial
commenced on the basis of a written report dated 03.09.2017
lodged with Police Station Sadar Bazar, District Mathura at 9.15
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a.m. by Smt. Sarvesh wife of Radhey Shyam, an aunt of the
appellant, saying that she was a resident of the place near Radha
Kishan Dham, Mathura and that her nephew, Babu son of Dwarka
Prasad was a resident of Ganeshpuram Colony, P.S. Sadar Bazar
(the appellant). She had gone over to the appellant’s house on
03.09.2017 in the morning hours in connection with some
personal work, when she saw that the appellant Babu’s wife
Shashi and both his sons were lying dead in their house. The
appellant was not there. It was also reported that all three had
been done to death with some sharp edged weapon. The
informant requested investigation and necessary action in the
matter. A copy of the written report is on record and marked as Ex.
Ka-1.
3. On the basis of the aforesaid written report, a check First
Information Report (for short, 'FIR') was registered on 03.09.2017
at 9.15 a.m. vide G.D. Entry No. 21, giving rise to Crime No.403 of
2017, under Section 302 IPC, P.S. Sadar Bazar, District Mathura.
The check FIR is on record and marked as Ex. Ka-2. A copy of the
relevant G.D. Entry No.21 is also on record and marked as Ex.
Ka-3.
4. Here, it must be noted that during trial, apart from the
original written report, marked as Ex. Ka-1, two photostat copies
of the written information dated 03.09.2017 were also placed on
record and mistakenly marked as Exhibits Ka-19 and Ka-28.
Likewise, two photostat copies of the check FIR, in addition to the
one already marked as Ex. Ka-2, were also placed on record and
marked as Ex. Ka-18 and Ka-27. In addition to the extract of the
G.D. Entry, that was proved and marked as Ex. Ka-3, three
photostat copies of the same were placed on record and marked
as Ex. Ka-13, Ka-20 and Ka-29. These Exhibits Ka-19, Ka-28,
Ka-18, Ka-27, Ka-13, Ka-20 and Ka-29 are duplication of
documents, which the learned Sessions Judge too has noticed to
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be superfluous documents, that were mistakenly marked as
Exhibits. These were, therefore, ignored by the learned Trial
Judge. We have also looked into the record and find that indeed
these documents, which are duplicates and superfluous, were
marked as exhibits by mistake. We also, therefore, ignore them.
5. Consequent upon registration of the crime, the Police
proceeded with the investigation and inquest for the deceased
Smt. Shashi commenced on 03.07.2017 at 10 a.m. ending at
12.15 p.m. Likewise, inquest for the deceased Jay Kishan also
commenced on the same day at 10 a.m. ending at 12.15 p.m.
Inquest for the deceased Neeraj commenced on 03.09.2017 at 10
a.m. ending at 1.00 p.m. The inquest report relating to Smt.
Shashi is on record as Ex. Ka-4, that relating to Jay Kishan as Ex.
Ka-5 and the one relating to the deceased Neeraj as Ex. Ka-6.
6. Autopsy on the cadavers of the three deceaseds was held
on 03.09.2017 at 6 p.m. Smt. Shashi sustained six incised
wounds and an abrasion. The cause of death opined was shock
and haemorrhage as a result of ante-mortem injuries. The
autopsy report is on record as Ex. Ka-7. The autopsy report
relating to the deceased Jay Kishan shows that the deceased
sustained as many as fourteen incised wounds and the cause of
death indicated is shock and haemorrhage as a result of ante-
mortem injuries. This autopsy report is also marked, surprisingly
as Ex. Ka-7. The marking of exhibits before the learned Trial
Judge for some reason, apparently attributable to lack of acumen
of the ministerial staff assisting the learned Judge, has gone
haywire at least in two instances. The third autopsy report relating
to the deceased Neeraj, also dated 03.09.2017, shows that the
deceased sustained seven incised wounds and the cause of
death is shock and haemorrhage as a result of ante-mortem
injuries. This deceased is noted to be aged 10 years. The autopsy
report is on record and marked as Ex. Ka-21.
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7. The appellant was arrested on 03.09.2017 from his
brother’s home in Delhi by the Police and the arrest memo says
that he was wearing a shirt, that had blood stains on it, and a
Sando vest (baniyan), which too had blood stains. The appellant
is said to have made a confession to the Police about the crime at
the time of his arrest. The memo of his arrest-cum-recovery of
blood-stained clothes from him, which also carries a reference to
his confession, is on record and marked as Ex. Ka-33. The
appellant was brought back to Mathura by the Investigating
Officer, the S.H.O. of P.S. Sadar Bazar, Mathura and taken at 7.20
p.m. on 03.09.2017 to the appellant’s house, situate in Mohalla
Ganeshpuram, and near the said house on a pucca road, the
party alighted from the police jeep. The appellant, who was hand-
cuffed, is reported to have moved ahead and crossed a culvert on
a drain adjacent to his house and into a vacant plot. There, from
the foliage of small babool trees and shrubs, with the aid of a
torch, he recovered a banka (farsa) at 7.58 p.m. The recovery
memo describes the banka in graphic detail and says that on its
handle and the blade, there were blood stains and dried earth.
The appellant is said to have told the Police that this was the
banka that he had employed to kill all the three victims. He said
that he had hid it here before leaving for Delhi. The murder
weapon was secured and sealed. The Investigating Officer also
took samples of plain earth and blood-stained earth, which were
separately secured and sealed in two plastic containers, both
placed in a white cloth before affixing the seal. The memo
regarding these earth samples collected is on record as Ex.
Ka-13.
8. After investigation, the Police submitted a charge-sheet
dated 18.09.2017. The learned Chief Judicial Magistrate, Mathura
took cognizance and furnished copies of the relevant prosecution
papers to the appellant as provided under Section 207 of the
Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). Thereafter,
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CRLA No. - 1952 of 2022
the learned Magistrate vide order dated 05.12.2017 committed the
case to the Court of Sessions for trial.
9. Before the Court of Sessions, the case was assigned to the
learned Additional Sessions Judge, Court No.01, Mathura for trial.
It came up before Mr. Amar Nath Singh, the Additional Sessions
Judge, Court No.1, Mathura on 06.01.2018 for the purpose of
framing charges. The learned Judge framed a solitary charge,
rather oddly, under Section 302/34 IPC. The appellant was read
over and explained the charge, who denied it and claimed trial.
10. The prosecution examined the following witnesses in
support of their case:
1. PW-1 – Smt. Sarvesh, the first informant,
2. PW-2 – Tejveer, a neighbour of the appellant,
3. PW-3 – CC 2439 Shekhar Chauhan, who got registered
the check FIR,
4. PW-4 – Raj Kumar Nohwar, an inquest witness,
5. PW-5 – Dr. Harsh Vardhan, who conducted postmortem
of the deceaseds,
6. PW-6 – HC 796 Naresh Sharma, who proved the
signatures of IO/ SHO Subodh Kumar Singh on various
documents and proved the charge-sheet,
7. PW-7 – Constable 372 Sonu Bhati, who proved the
material exhibits.
11. The prosecution produced the following documentary
evidence:
Sr.
No.
Exhibit No. Exhibited documents with brief particulars
1 Ex. Ka-1 Written report dated 03.09.2017 lodged with Police
Station Sadar Bazar, District Mathura, proved by PW-1,
Smt. Sarvesh
2 Ex. Ka-2 Check FIR dated 03.09.2017, proved by PW-3 CC
Shekhar Chauhan
3 Ex. Ka-3 GD Entry No. 21 dated 03.09.2017 Time 09:15 hours,
proved by PW-3 CC Shekhar Chauhan
4 Ex. Ka-4 Inquest report of the deceased Shashi dated
03.09.2017, proved by PW-4, Raj Kumar Nohwar
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5 Ex. Ka-5 Inquest report of the deceased Jay Kishan dated
03.09.2017, proved by PW-4, Raj Kumar Nohwar
6 Ex. Ka-6 Inquest report of the deceased Neeraj dated 03.09.2017,
proved by PW-4, Raj Kumar Nohwar
7 Ex. Ka-7 Postmortem report of the deceased Jay Kishan dated
03.09.2017, proved by PW-4, Dr. Harsh Vardhan
8 Ex. Ka-7 Postmortem report of the deceased Shashi dated
03.09.2017, proved by PW-4, Dr. Harsh Vardhan
9 Ex. Ka-8 Postmortem Requisition Letter (Police Form No.33) sent
to the Civil Surgeon relating to the deceased Jay Kishan
dated 03.09.2017
10 Ex. Ka-9 Police Form, bearing No. 4A/37
11 Ex. Ka-10 Challan Lash of the deceased Jay Kishan dated
03.09.2017
12 Ex. Ka-11 Letter to the C.M.O. dated 03.09.2017 for conducting
postmortem of the deceased Jay Kishan
13 Ex. Ka-12 Photo Lash of the deceased Jay Kishan dated
03.09.2017
14 Ex. Ka-14 Postmortem Requisition Letter (Police Form No.33) sent
to the Civil Surgeon relating to the deceased Neeraj
dated 03.09.2017
15 Ex. Ka-15 Challan Lash of the deceased Neeraj dated 03.09.2017
16 Ex. Ka-16 Letter to the C.M.O. dated 03.09.2017 for conducting
postmortem of the deceased Neeraj
17 Ex. Ka-17 Photo Lash of the deceased Neeraj dated 03.09.2017
18 Ex. Ka-21 Postmortem report of the deceased Neeraj dated
03.09.2017, proved by PW-4, Dr. Harsh Vardhan
19 Ex. Ka-22 Postmortem Requisition Letter (Police Form No.33) sent
to the Civil Surgeon relating to the deceased Shashi
dated 03.09.2017
20 Ex. Ka-23 Challan Lash of the deceased Shashi dated 03.09.2017
21 Ex. Ka-24 Photo Lash of the deceased Shashi dated 03.09.2017
22 Ex. Ka-25 Letter to the C.M.O. dated 03.09.2017 for conducting
postmortem of the deceased Shashi
23 Ex. Ka-26 Letter to the RI relating to the deceased Shashi dated
03.09.2017
24 Ex. Ka-30 Site-plan of the place of occurrence dated 03.09.2017,
proved by PW-6, HC Naresh Sharma
25 Ex. Ka-31 GD Entry No. 39 dated 03.09.2017 Time 19.00 hours
regarding arrest of the accused, proved by PW-6, HC
Naresh Sharma
26 Ex. Ka-32 GD Entry No. 40 dated 03.09.2017 Time 19.20 hours,
entering disclosure made by the accused, proved by
PW-6, HC Naresh Sharma
27 Ex. Ka-33 Recovery memo of the clothes of the accused dated
03.09.2017, proved by PW-6, HC Naresh Sharma
28 Ex. Ka-34 Recovery memo of the weapon of assault dated
03.09.2017, proved by PW-6, HC Naresh Sharma
29 Ex. Ka-35 Memo taking into possession plain earth and blood
stained earth dated 03.09.2017, proved by PW-6, HC
Naresh Sharma
30 Ex. Ka-36 Charge-sheet dated 18.09.2017, proved by PW-6, HC
Naresh Sharma
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12. After the prosecution evidence was over, the statement of
the appellant was recorded under Section 313 Cr.P.C.
13. The appellant entered defence and produced Sanju @
Sanjay as DW-1 in support of his case.
14. The learned Trial Judge, after hearing learned Counsel for
the parties, by means of the impugned judgment and order dated
25.01.2022 convicted the appellant of the offence punishable
under Section 302 IPC, and sentenced him to imprisonment for
life vide order dated 27.01.2022, besides imposing a fine of
Rs.30,000/-, as already detailed.
15. Aggrieved, the appellant has preferred the present appeal.
16. Heard Mr. Abhishek Mayank, learned Counsel for the
appellant and Mr. Shashi Shekhar Tiwari, learned Additional
Government Advocate on behalf of the State.
17. It must be remarked at the outset that this is a case, which
rests entirely on circumstantial evidence. The two witnesses of
fact, who have been examined by the prosecution, have not seen
the occurrence, or so to speak, the fact in issue: Whether it was
the appellant, who murdered the three victims? The witnesses of
fact can at best be said to be witnesses of some relevant facts.
The standard, by which the prosecution have to prove a case of
circumstantial evidence, is well established. It is the duty of the
prosecution, firstly to prove all the circumstances, on which they
rely beyond doubt. It is then their burden to ensure that the
circumstances brought on record put together form such a
complete chain that it is consistent alone with the guilt of the
accused beyond all reasonable doubt. There should be no other
possibility or probability, of course realistic, on the foot of the
circumstances established other than the one which leads to an
inference of guilt for the accused. In this connection, reference
may be made to Sharad Birdhichand Sarda v. State of
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CRLA No. - 1952 of 2022
Maharashtra, (1984) 4 SCC 116, which is a locus classicus on the
standards by which the prosecution have to establish their case,
where it rests on circumstantial evidence entirely. In Sharad
Birdhichand Sarda (supra), it was observed by the Supreme
Court:
“ 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 Crl LJ 1783]
where the 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."
18. There are two witnesses of fact, or so to speak of
circumstances, that the prosecution have examined. The first is
the first informant, Smt. Sarvesh wife of Radhey Shyam. In her
examination-in-chief, which is as short as the written report that
she lodged, she has stated that at the time of occurrence, she
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CRLA No. - 1952 of 2022
would reside near the Radha Kishan Dham, Mathura. On
03.09.2017 in the morning hours, she went to her nephew's place,
that is to say, the appellant Babu's home, situate in Ganeshpuram
Colony. She had gone there in connection with some personal
work. Upon reaching, her nephew's home, she saw that his wife
Shashi and two sons of Shashi were lying dead. The appellant
was not present. All three had been done to death with a sharp
edged weapon. She also said that she had dictated the written
report before signing it and handed it over to the police station.
She proved the written report, which was then exhibited as Ex.
Ka-1.
19. This witness was cross-examined some weeks after her
examination-in-chief on 17.08.2018. She has said in her cross-
rd
examination that the Police took down her statement on the 3
between 10-10.30 of the clock. She said that she did not say in
her examination-in-chief that she is not much educated. She has
said further on in her cross-examination that she had gone for a
stroll, when she was told of the fact by a neighbour. She does not
remember the neighbour's name and address. She also stated
that she had written the fact in her report as well and said so in
her statement under Section 161 Cr.P.C. that she was told of the
fact by a neighbour. She did not know what the Police have
written. She also said that she cannot say why it was not
mentioned in her written report. It is also said that she does not
know if the fact about her going for a stroll was mentioned in the
written report or in her statement to the Police. It is then said that
the witness did not know, who had scribed the written report, Ex.
Ka-1. She did not know the scribe's address. It is also testified
that the paper on which the written report was given was provided
to her at the police station and she signed it also at the police
station. It is next said that before the written report was lodged,
she had spoken to the Police and while she was talking to the
Police, the report was written. Of course, she adds as a
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CRLA No. - 1952 of 2022
redeeming feature that whatever is written in her report is based
upon her information.
20. The next witness of fact is Tejveer son of Ramesh Chandra,
who has been produced by the prosecution as PW-2. He has said
in his examination-in-chief that he is a resident of Ganeshpuram
Colony for the past three years. He carries on practice in medicine
as his source of livelihood. On 03.09.2017 at about 7 o'clock in
the morning hours, he heard a commotion, in response to which
he went over to Babu's house located in the colony. He saw a big
congregation of people there. The appellant Babu's house is
located in the colony just behind this witness's. He has testified to
the fact that in Babu's home, his wife Shashi and the two children
were lying dead. All three of them had been brutally done to
death. The appellant Babu was not present. A big crowd had
gathered there. The door of the appellant's house was locked and
the dead bodies could be seen from the window. Some persons
from the crowd suggested of breaking open the main door, but
this witness stopped them saying that the Police had to be
informed. It is also said by this witness that upon the suggestion
of others, who were there, it was he who gave information to the
Police at the Chowki, which is located within the township. The
Police arrived at the scene of crime upon his information. They
broke open the door and were into the process of taking
necessary steps when this witness came away. In his cross-
examination, which is very brief, this witness has said that he had
not seen the appellant Babu at his house over the past many
days. The weapon of crime was lying by the side to the dead
bodies. To a suggestion, he said that he was not deliberately
hiding the fact that the deceaseds were done to death by
unknown men.
21. Shekhar Chauhan, a Constable in the Police, then posted at
P.S. Sadar Bazar, is PW-3. He has testified to the fact that on the
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CRLA No. - 1952 of 2022
fateful day, Head Constable Suresh Chand was on duty along
with him at the police station, when Smt. Sarvesh, the informant,
had handed over a written report to Suresh Chand Sharma. The
Head Moharrir Suresh Chand Sharma had dictated the check FIR
to the computer typist, which was registered against unknown
offenders. Some part of it was typed by this witness as well. He
has testified that he had typed out G.D. Entry No. 21, on the basis
of which the case was registered at 9.10 a.m. at the police station.
He had brought along the original G.D. from the police office. He
had another typed written copy of the G.D. on him, which he
proved. He proved the check FIR as well and the copy of the G.D.
registering the crime. There is nothing remarkable in the
testimony of this witness.
22. Raj Kumar Nohwar, PW-4, is a panch witness and has
affirmed the fact that he signed the inquest reports relating to the
deceaseds.
23. Dr. Harsh Vardhan, PW-5, is the autopsy doctor. He has
said in his examination-in-chief that on 03.09.2017, he was posted
at the Combined Hospital, Vrindavan. He affirmed the fact that he
had carried out the autopsy on the cadavers of Smt. Shashi, Jay
Kishan and Neeraj. He has affirmed the respective injuries on
their dead bodies, all of which are multiple incised wounds. He
has said in his cross-examination that the incised wounds on Smt.
Shashi's dead body had varying width, which may lead to the
possibility that more than one weapons were used. He also said
that for the same reason, the assailants could be more than one.
The same holds true for the deceased Jay Kishan and Neeraj as
well. He has further on in his cross-examination commented upon
the possible time of death with reference to the contents and
condition of food found in the stomach or the alimentary canal, as
also the presence and extent of the rigor mortis. The doctor has
said that he was never shown any weapon.
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CRLA No. - 1952 of 2022
24. Naresh Sharma is a Head Constable in the Police, who was
produced as PW-6. He has said in his examination-in-chief that on
03.09.2017, he was posted at P.S. Sadar Bazar, Mathura as a
pairokar. He has stated that investigation in the case was
undertaken by S.H.O. Subodh Kumar Singh, whose writing he
was acquainted with. He has proved the S.H.O.'s signatures on
various documents, including recovery memos etc. and the G.D.s.
He has testified towards the end of his examination-in-chief that
S.H.O. Subodh Kumar Singh had been murdered. In his cross-
examination, there is nothing remarkable.
25. The last witness examined on behalf of the prosecution is
Sonu Bhati, a Constable, who was posted at P.S. Sadar Bazar on
03.09.2017. He had accompanied S.H.O. Subodh Kumar Singh
and Senior Sub-Inspector Ravindra Yadav to the place of
occurrence. He has proved the collection of blood-stained and
plain earth and his signatures on the memorandum as also those
on the material exhibits carrying the two kinds of earth. He had
also accompanied the police party to Sonia Vihar, Delhi and to the
residence of the appellant's brother Tulsi Prasad. He has testified
to the recovery of the blood-stained shirt and vest that the
appellant was wearing. This witness has also witnessed the
recovery of the murder weapon, which the prosecution allege from
the foliage in an open plot of land near the appellant's house. The
statement that the appellant made at the time of recovery has also
been testified to. The witness has also proved material exhibits of
the recovery as also the recovery memorandum. In his cross-
examination, he has testified to a few matters that are relevant,
and in our opinion, must be quoted in his own words:
"
जब अभियुक्त को देहली से पकड़ा तो दिल्ली किसी मजिस्ट्रेट के समक्ष पेश नहीं किया। कोई भी
स्वतंत्र व्यक्ति किसी भी रिकवरी का गवाह नहीं बनाया गया था। और न ही कोई स्वतंत्र व्यक्ति मुलजिम
का ब्यान लेने से पूर्व बुलाया गया। किसी स्वतंत्र साक्षी की मौजूदगी में मुलजिम का ब्यान नहीं लिया
गया था। मुलजिम को कोई चेतावनी नहीं दी गयी कि वह अपने विरूद्ध कुछ भी कहने को बाध्य नहीं है।
(Acknowledge)
इस सम्बन्ध में मुलजिम से कोई सहमति नहीं ली गयी। मेरी जानकारी में नहीं है
कि बरामद शुदा बंका किसी डाक्टर को दिखाकर पूछा गया कि इस हथियार से मृतकों को चोट आई या
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CRLA No. - 1952 of 2022
Discloser statement
नहीं। मुलजिम का लेने से पहले किसी स्वतंत्र गवाह को बुलाया अथवा
नहीं मुझे याद नहीं है। दिल्ली में मुलजिम का कोई ब्यान भी नहीं लिया था। जिस जगह से बांक बरामद
हुआ वह स्थान खुला हुआ स्थान था वह सभी को दिखाई देता था। दिन में बांक को देखा जा सकता था।
कपड़ों पर कितने स्थानों पर खून था यह फर्द में नहीं लिखा हुआ है। न उनके साइज लिखे हुए है। मुझे
नहीं पता कि घटना स्थल से पाया गया ब्लड व बांक व कपड़ों पर पाये गये ब्लड को टेली करने भेजा
गया या नहीं। फर्द बरामदगी में गणेश पुरम के किसी व्यक्ति को गवाह नहीं बनाया गया। बरामदगी स्थल
का कोई नक्शा नहीं बनाया गया। फर्द बरामदगी में बरामदगी के समय पर ओवर राइटिंग है। बरामदगी
का पहले समय क्या लिखा गया था मैं नहीं बता सकता। जो बांक मैं बरामद होना बताता हूं इस तरह के
बांक बाजार में मिल जाते हैं। बांक के फल पर किस क्षेत्र में कितनी लम्बाई मैं कितनी चौड़ाई मैं कितने
धब्बे थे यह नहीं लिखा हुआ है। बांक की धार पर खून के धब्बे थे यह भी नहीं लिखा है। यह बात सही है
कि हस्ताक्षरों से पहले फर्द मे यह लिखा हुआ है कि हमराहियान कर्मचारियों के हस्ताक्षर बनवाये गये।
पहले फर्द लिखी गयी फिर सील किया गया।
यह कहना गलत है कि सारी कार्यवाही थाने पर बैठकर फर्जी रूप से की गयी हो।
यह सही है कि यह बांक मजिस्ट्रेट महोदय के समक्ष प्रस्तुत नहीं किया गया। बांक के हैडिंल की मोटाई
फर्द में अंकित नहीं है। हैंडिल के किस हिस्से पर खून लगा है फर्द में नहीं लिखा है।
- 20
प्रदर्श क जो कपड़ों की फर्द है उसमें हस्ताक्षरों से पहले यह लिखा है कि हमराही कर्मचारीगण के
हस्ताक्षर बनवाये गये।
कपड़ों की फर्द बनायी गयी उसके बाद सील मौहर किया गया। फर्द में उल्लेख नहीं है कि कपड़ो पर
-
किस किस साइज के व कहां कहां खून लगा है। इस फर्द पर किसी स्वतंत्र गवाह के हस्ताक्षर नहीं है न
ही किसी गवाह को बुलाया गया। जहां फर्द समाप्त हुई है उससे काफी नीचे कर्मचारियों के हस्ताक्षर है।
"
कपड़ों की फर्द पर अभियुक्त के हस्ताक्षर नहीं है।
(emphasis by Court)
26. In the last question, that was put to the appellant under
Section 313 Cr.P.C., which is to the effect if he had anything else
to say, the appellant has stated:
"
मै घटना वाले दिन व समय घटनास्थल पर न होकर दिल्ली में रह रहा था। पुलिस ने मेरे विरुद्ध फर्जी व
झूठी कार्यवाही की है तथा गलत समय व दिनांक पर घटना होना दर्शाया है। घटना से संबंधित
आलाकतल मेरे निशानदेही पर बरामद नहीं हुआ है। फर्जी बरामदगी दिखाया है। मैं निर्दोष हूं। झूठा
"
फंसाया गया है।
27. The appellant produced in his defence, Sanju @ Sanjay son
of Dwarka Prasad as DW-1. DW-1 in his examination-in-chief has
said that he is a shop-keeper by profession and lives in Gali No.4,
House No.166, Sonia Vihar, P.S. Sonia Vihar, District Kirawal
Nagar, Delhi-94. He is apparently a brother of the appellant of full
blood. He has testified that his brother Babu lives with him in Delhi
and the two together sell their wares on the footpath. The
14
CRLA No. - 1952 of 2022
appellant's wife and children live in Mathura. The appellant would
visit his family once a month and provide them with money,
whenever he would visit them. Fifteen days antedating the
occurrence, the appellant had to come back to Delhi after
providing for his wife and children, and on the fateful night, the
appellant was with this witness in Delhi. After his wife and children
died, on 03.09.2017, the Police from P.S. Sadar Bazar came over
to his house at 12 noon. The other family members, upon inquiry
by the Police, told them that the appellant would be present with
the witness at his shop. On 03.09.2017, the two brothers were
transacting business on the footpath of the 25 feet wide road,
located at Sonia Vihar, when the Sadar Bazar Police came over
and took the appellant away. His brother was wearing clean and
untainted clothes with no blood spots on them.
28. The witness also says that the appellant had cordial
relations with his wife and children and there were no bickerings
between them. The witness has also said that the Police on the
following day, when the witness came over to Mathura, kept
assuring him that they would release the appellant by evening, but
they did not. Therefore, the witness on 05.09.2017 addressed an
application to the S.S.P., Mathura in this regard, a copy whereof is
on record. In his cross-examination by the prosecution, the
witness (DW-1) says that he lives in Delhi with his wife and
children. The appellant's children would study at Mathura and for
the said reason, he would not bring them over to Delhi. The
appellant would frequent his family at Mathura. The appellant and
this witness were five brothers. The eldest of them Tulsi Das lived
in Delhi; the second is the appellant; the third in order of age was
the witness; the fourth was Vinod; and, the fifth Narendra. Vinod
and Narendra stayed in the village and all the other three at Delhi.
29. The witness has further on said in his cross-examination
that it was true that the incident happened in the night intervening
15
CRLA No. - 1952 of 2022
02/03.09.2017. The appellant had gone over to Mathura 7-8 days
earlier. On 03.09.2017, the appellant was arrested from their
shop. It was then that all of them came to know that the
appellant's wife and children had been murdered at Mathura. He
moved the S.S.P. in the matter, but did not know of the outcome.
The witness also says that he sells ladies' wares on the footpath.
There is a school across the footpath, called Hardang Public
School. The first information was lodged by their aunt against
unknown offenders.
30. The foremost circumstance that has been propounded by
the prosecution to establish the case is the fact that the appellant
and the three deceaseds were a family of husband, wife and two
children, and the fact that three of the family were found dead at
their residence with the appellant, the fourth family member
absent, throws the burden upon him under Section 106 of the
Indian Evidence Act to disclose facts specially within his
knowledge relating to the circumstances in which three others of
the family died. We must remark at the outset that the prosecution
have to establish their case even in a case of circumstantial
evidence and cannot rely upon the special knowledge of the
accused alone to relieve them of the overall burden under Section
101 of the Evidence Act. It is after the prosecution have
established the necessary incriminating circumstances, with only
some facts remaining unexplained, which possibly the prosecution
cannot know of, that the burden under Section 106 of the
Evidence Act can be invoked. In that case too, the failure to
discharge the burden would not ipso facto lead to a discharge of
the prosecution’s burden of proof under Section 101 of the
Evidence Act. The failure of the accused to explain a special fact
within his knowledge may add one link to the chain of
circumstances, which in any case has to be completed by the
prosecution in order to discharge their burden under Section 101.
16
CRLA No. - 1952 of 2022
31. The mere fact that a family of four, that stayed together, out
of whom three were found murdered, when the fourth was not
around, is not a circumstance in itself to hold it as a circumstance
in itself against him as one link in his complicity. There could be
many possibilities compatible with the murder of the other family
members and yet consistent with the surviving member's
innocence. Therefore, the prosecution would have to show some
conduct on the surviving family member's part to indicate his
complicity in the crime that would serve as a circumstance in the
chain to be completed before the charge against him can be
brought home. Here, it is not that the prosecution have not
produced any evidence to show that the appellant's complicity
could be there, apart from his mere absence from the party's
family home. The prosecution have allegedly recovered blood-
stained clothes from the person of the appellant, which he wore at
the time when they arrested him from his brother's house in Delhi,
and then, also produced evidence of recovery of the weapon of
offence at his pointing, which may be admissible under Section 27
of the Evidence. Act.
32. The fact, therefore, if the absence of the appellant from his
home while his family were found murdered within the four-walls
of their house, is an incriminating circumstance to form a link in
the chain, would depend upon the fact if the recovery of blood-
stained clothes from the appellant's person and recovery of the
weapon of crime at his pointing out are established by the
prosecution. So far as recovery of the blood-stained shirt and the
vest that he wore at the time when the appellant was arrested
from his brother's home or may be from their place of business,
as the appellant's brother, DW-1, says, depends if this recovery
can be said to be established by any cogent or reliable evidence.
According to the prosecution, the Police went to the deceased's
brother's home at Delhi and found him there wearing the blood-
stained clothes, which were taken away from his person at the
17
CRLA No. - 1952 of 2022
time of his arrest. There does not appear to be much cavil about
the fact that the appellant was indeed arrested from Delhi, though
there is an issue about the fact if he was arrested from his elder
brother Tulsi Das's home or the footpath shop, where he would
work along with his younger brother Sanju @ Sanjay, DW-1. That
matter, for the time being, can be kept aside as the foremost to
determine is the fact if the appellant was indeed arrested wearing
blood-stained clothes at Delhi, wherever he was. A perusal of the
recovery memo, Ex. Ka-33, shows that it is signed by the two
inspectors and the two constables Sonu Bhati and Pramod, who
were part of the police party, that had gone to Delhi to arrest the
appellant. The recovery memo is not signed by the appellant.
There are no signatures of any independent or public witness as
well. It also appears from the testimony of PW-7, Constable Sonu
Bhati, that no public witness was asked to witness the recovery. In
this connection, reference may be made to the following part of
the cross-examination of PW-7, Constable Sonu Bhati:
"
कपड़ों की फर्द बनायी गयी उसके बाद सील मौहर किया गया। फर्द में उल्लेख नहीं है कि कपड़ो पर
-
किस किस साइज के व कहां कहां खून लगा है। इस फर्द पर किसी स्वतंत्र गवाह के हस्ताक्षर नहीं है न
ही किसी गवाह को बुलाया गया। जहां फर्द समाप्त हुई है उससे काफी नीचे कर्मचारियों के हस्ताक्षर है।
"
कपड़ों की फर्द पर अभियुक्त के हस्ताक्षर नहीं है।
33. What we find is that the evidence of recovery of these
blood-stained clothes from the person of the appellant is utterly
unreliable for three reasons: firstly, the fact that the appellant
himself did not sign the recovery memo and there is no
endorsement on the recovery memo that he was asked to sign it
but refused. The document is signed by the police party alone and
in the absence of the appellant signing it, or their being an
endorsement of his declination, the recovery memo becomes
utterly suspect and looses almost all its fidelity; secondly, the fact
that admittedly no effort was made to secure the presence of an
independent witness for witnessing the recovery of blood-stained
clothes found on the appellant's person when he was arrested,
18
CRLA No. - 1952 of 2022
adds to the suspicion about the fact itself; and, thirdly, it belies the
possible and plausible behaviour of any man, much less a
murderer, who has escaped from home and gone to his brother
that hours after the evil deed he would still wear blood-stained
clothes, almost carrying damning evidence wrapped about his
person. In the normal conduct of human affairs, after commission
of a gruesome crime, like murder, it is not only the expected
behaviour of an accused, but something borne by testimony of
crime etched in judicial records that the first thing that a murderer
does is to wash away the blood-stains; or at least attempt to do
so.
34. This takes us to the question of the incriminating recovery of
the murder weapon at the pointing out of the appellant. The
recovery of the weapon of offence is recorded in a memo of
recovery dated 03.09.2017, which is on record as Ex. Ka-34. The
material part of the recovery memo reads:
" ( ) 403/17 302 IPC
फर्द बरामदगी आलाकत्ल बांका फरसा सम्बन्धि त मु०अ०सं० धारा थाना सदर
बाजार मथुरा।
03.09.17 SHO 0
आज दिनांक को मै सुबोध कुमार सिंह मय व० उ०नि० श्री रविन्द्र सिंह व हमराह कां
1234 1944
प्रमोद कुमार व कां० सोनू भाटी मय चालक जीप सरकारी कां० सुनील कुमार के
0 0 0 403/17 302 IPC S/
मु अ सं धारा थाना सदर बाजार मथुरा से सम्बन्धि त अभियुक्त बाबू ० श्री
R/
द्वारिका प्रसाद ० गणेशपुरम कालोनी थाना सदर बाजार के साथ वाउम्मीदगी बरामदगी आलाकत्ल
40 19.20
सम्बन्धि त मुकददमा उपरोक्त के बहवाले रपट संख्या समय बजे तारीखी इमरोजा रो०आम
थाना हाजा से रवाना होकर मोहल्ला गणेशपुरम स्थि त मकान प्रतिवादी के पास वाले पक्के रास्ते पर जीप
को रोका। अभियुक्त बाबू उपरोक्त जो हथकड़ी लगाकर हमराह कां० सोनू भाटी के सुपर्द है जीप से
-
उतरकर पैदल पैदल आगे चलने लगा तथा मकान से सटे नाले की पुलिया से पारकर नाले की दूसरी
तरफ स्थि त खाली प्लॉट पर पहुँचा। खाली प्लॉट में स्थि त बबूल के छोटे पेड़ व झॉड़ियो मे से टार्च की
( ) 19.58
रोशनी की सहायता से चुपाकर रखा हुआ लोहे का बँका फरसा समय करीब बजे निकाल कर
...........
दिया। बाँका पर बेटा व फल पर खून के धब्बे तथा मिट्टी लगी हुयी है। अभि० बाबू ने बताया कि
साहब यही वह बँका है जिससे मैने तीनो की हत्या की है। दिल्ली जाने से पहले मै इसे यहाँ पर छिपा गया
था बरामदा बँका को सूत की रूई मे रखकर कपड़े मे रखकर सिलकर सर्वशील मोहर कर नमूना मोहर
. . . .
तैयार किया गया। फर्द मौके पर मुझ एस एच ओ द्वारा बोल बोल कर टार्च की रोशनी मे एस एस आई से
"
लिखवायी गयी। हमराहीगण के हस्ताक्षर बनवाये गये।
This memo of recovery is also signed by the appellant.
35. What we notice about this memo of recovery is that there is
no prior disclosure statement recorded by the Police, which would
19
CRLA No. - 1952 of 2022
relate distinctly to the fact likely to be discovered so as to make
the appellant's statement to that extent admissible in evidence.
The Police apparently in some surreptitious manner recorded the
fact that the appellant would lead them to the place where he had
hidden the weapon of crime and set about the task of getting the
weapon recovered. How this was precisely done and how much in
breach of the law it was, is evident from the following part of
examination-in-chief of PW-7 Constable Sonu Bhati:
"
इसके उपरान्त हम सभी हमराहीजन अभियुक्त बाबू को दिल्ली से लेकर उसी दिन थाना सदर बाजार
,
आये तथा थाना सदर बाजार से नये सरकारी जीप से चालक सुनील कुमार को मैं कांस्टेबल प्रमोद
, SSI , -
कुमार रविन्द्र यादव व थानाध्यक्ष सुबोध कुमार सिंह अभियुक्त बाबू द्वारा बतायी गयी आला
19-20 ,
कतल की बरामदगी हेतु समय बजे अभियुक्त के घर के पास पहुँचे जहां से अभियुक्त के
निशान देही पर मकान से सटे नाले की पुलिया से पार नाले की दूसरी तरफ खाली प्लाट पर पहुंचे। खाली
19:58
प्लाट पर स्थि त बबूल के छोटे पेड़ व झाड़ियों में से टार्च की रोशनी की सहायता से समय करीब
बजे छुपाकर रखा गया लोहे का बांक अभियुक्त ने निकाल कर अभियुक्त ने दिया। बांक का फल लोहे
,
का बेता लकड़ी का गोलाकार बना हुआ था। बेंते की ऊपर से फल का लम्बा भाग लकड़ी का बना हुआ
1 10
है। बेंते में लोहे का छल्ला फंसा हुआ है। बांक की लम्बाई बलिस्त अंगुल है जिसमें फल की
4 10 , 5
नुकीली हिस्से की लम्बाई करीब अंगुल है। मुख्य फल की लम्बाई करीब अंगुल चौड़ाई अंगुल
7
है। लकड़ी के बेते की कुल लम्बाई अंगुल है। बांक व बेते पर खून के धब्बे व मिट्टी लगी हुयी है।
,
अभियुक्त बाबू ने बांक बरामद करते हुये बताया था कि यह वही बांक है जिससे मैंने अपनी पत्नी व दोनों
बच्चों की हत्या की है। इसको मैं दिल्ली जाने से पहले छुपा गया था। आज ये बांक मेरे सामने है। जिस
-4 ,
पर वस्तु प्रदर्श डाला गया। बरामद बांक को सूत की रूई में रखकर कपड़े में रखकर सील कर सर्वे
SSI
मोहर नमूना टार्च की रोशनी में तैयार किया गया था। फर्द थानाध्यक्ष महोदय द्वारा बोल बोलकर
,
रविन्द्र यादव से टार्च की रोशनी में लिखवायी गयी थी जिस पर मेरे अलावा कांस्टेबल प्रमोद थानाध्यक्ष
SSI "
सुबोध कुमार सिंह और रबिन्द्र यादव तथा अभियुक्त बाबू के मौके पर हस्ताक्षर कराये गये थे।
36. In his cross-examination, this witness has testified:
"
जब अभियुक्त को देहली से पकड़ा तो दिल्ली किसी मजिस्ट्रेट के समक्ष पेश नहीं किया। कोई भी
स्वतंत्र व्यक्ति किसी भी रिकवरी का गवाह नहीं बनाया गया था। और न ही कोई स्वतंत्र व्यक्ति मुलजिम
का ब्यान लेने से पूर्व बुलाया गया। किसी स्वतंत्र साक्षी की मौजूदगी में मुलजिम का ब्यान नहीं लिया
........ Discloser statement
गया था। मुलजिम का लेने से पहले किसी स्वतंत्र गवाह को बुलाया
अथवा नहीं मुझे याद नहीं है। दिल्ली में मुलजिम का कोई ब्यान भी नहीं लिया था। जिस जगह से बांक
बरामद हुआ वह स्थान खुला हुआ स्थान था वह सभी को दिखाई देता था। दिन में बांक को देखा जा
"
सकता था।
37. To our understanding, this kind of a recovery does not
satisfy the requirements of Section 27 of the Evidence Act nor can
the information, as distinctly relates to the fact discovered thereby,
the fact being the discovery of the weapon of murder and the
20
CRLA No. - 1952 of 2022
information obviously being that the appellant had hidden the
weapon of murder at the place, wherefrom he got it recovered.
These cannot be read in evidence. The reason why it cannot be
read in evidence is that the first part of the memorandum or
panchayatnama under Section 27 of the Evidence Act has not
been drawn up, as the law requires it. It has not been drawn up at
the police station after calling two independent witnesses to
witness the disclosure made. The requirement is to record the
disclosure in the presence of witnesses, and thereafter, follow the
accused to the place about which he has made the disclosure,
along with the two independent witnesses. It is only if the
appellant had recovered the weapon of crime in the presence of
such panch witnesses, before whom he had made the disclosure,
would the evidence be admissible under Section 27. Else not. If
no independent witness was available to witness the disclosure,
the fact had to be recorded in the panchnama. In that event, the
evidence of the Investigating Officer would have to be considered.
Here, that is not the case. It is a case of utter breach where no
independent witness was summoned at the time of recording the
disclosure statement by the Investigating Officer at all. Otherwise
as well, in this case, the Investigating Officer, who could have
proved the recovery under Section 27, subject to fulfillment of
conditions which have not been adhered to here, has not been
produced to prove the fact because Subodh Kumar Singh, the
Investigating Officer, died shortly afterwards. The only witness of
the recovery made purportedly under Section 27 is PW-7, who
has been produced. This witness by his own evidence renders the
recovery suspect and surely one in breach of the salutary
requirement. He has clearly said that no independent witness was
called at the time when the disclosure statement was recorded.
He has described the steps leading to the recovery, which is
sought to be admitted in evidence by the prosecution, that clearly
show that it was just a hurried act of hustling the appellant to the
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CRLA No. - 1952 of 2022
place wherefrom recovery was alleged and then attributing the
recovery at his pointing from the bushes in an open piece of land.
This kind of a recovery, which the prosecution want us to act upon
by resort to Section 27 of the Evidence Act far from satisfies the
requirements of the law. The law in this connection has been laid
down by the Supreme Court in Ramanand v. State of U.P., (2023) 16
SCC 510. The facts and the issue involved, relevant to the question
here, can best be recapitulated in the words of their Lordships in
Ramanand (supra). In Ramanand, the relevant facts were :
“ Discovery of weapon of offence and bloodstained
clothes
54. It is the case of the prosecution that on 24-1-2010
the appellant-accused 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 appellant-accused 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 appellant-accused, 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 realised 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 bloodstained clothes. The
weapon of offence and the bloodstained clothes were
collected in the presence of the two panch witnesses
and the panchnama, Ext. 5 was accordingly drawn. The
weapon of offence and the bloodstained 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 and 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.”
38. Now, the manner in which a recovery under Section 27 of
the Evidence Act is to be effected in order to make it admissible in
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CRLA No. - 1952 of 2022
evidence has been laid down by the Supreme Court in
Ramanand, where it is observed:
“ 56. If, it is say of the investigating officer that
the appellant-accused 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 bloodstained 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 bloodstained
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.
57. 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 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 bloodstained clothes.
The second panch witness, namely, Pratap though
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CRLA No. - 1952 of 2022
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 bloodstained 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.
58. 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.”
39. We have already noticed the manner in which a
surreptitious recovery, without recording a disclosure statement in
the presence of two independent witnesses, was effected by the
Police from an open piece of land. The manner in which the
recovery of the murder weapon was done, for all the reasons that
we have indicated hereinbefore and the principles laid down by
the Supreme Court in Ramanand, does not render either the
statement of the appellant or the fact discovered distinctly in
consequence thereof, admissible under Section 27 of the
Evidence Act. In our considered opinion, therefore, this
incriminating circumstance of recovery of the weapon of murder at
the pointing out of the appellant has to be discarded.
40. There is another facet to the issue of recovery in this case.
PW-7 in his cross-examination has very candidly acknowledged
the fact that the place from where the banka was recovered is an
open place, visible to all. During day time, the banka could be
seen. The recovery of the weapon of crime from an open place,
apparently accessible to the public and where it was visible too,
does not inspire confidence with us, even otherwise to accept the
evidence of recovery. To add to this is the testimony of PW-2, an
independent witness and a neighbour of the appellant, who has
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CRLA No. - 1952 of 2022
said in his cross-examination that when he visited the appellant's
house, he saw the weapon of murder lying close-by to the dead
bodies. This witness was never cross-examined by the
prosecution about this assertion of his. This renders the recovery
at the pointing out of the appellant highly suspect.
41. There is yet another angle to the matter. In a case of
circumstantial evidence, the assailant would have some
reasonable motive to commit the crime, which it is always safe to
consider and look into in such cases. Here, the testimony, that
has been offered by the prosecution, does not attribute any
motive to the appellant to commit such a gruesome crime. There
is some mention of a motive in the statement of the appellant
recorded by the Police under Section 161 Cr.P.C., bot no
evidence thereof could be produced in Court by the prosecution.
In the absence of some reasonable and potent motive in a case of
circumstantial evidence, like the present one, it would be unsafe
to convict the appellant. We are aware of the well settled principle
that the absence of motive alone will not be a ground to throw out
a prosecution based entirely on circumstantial evidence, where it
establishes the guilt beyond reasonable doubt, but in a case
where the circumstances otherwise do not establish the case, the
absence of motive, as in the present case, would certainly weigh
in favour of the appellant. In this connection, reference may be
made to Subhash Aggarwal v. State (NCT of Delhi), (2025) 8 SCC
440. In Subhash Aggarwal (supra), it was held:
“ 26. Nandu Singh v. State of M.P. [ Nandu Singh v. State
of M.P. , (2022) 19 SCC 301] was a case in which the
deceased was found missing and later his body
recovered. One of the witnesses deposed that the
deceased was seen going out with the accused from a
hotel which was the sole circumstance connecting the
accused with the deceased which according to the
learned Judges could not even be brought under the
theory of last seen together, since there was nothing
to indicate that they were seen together proximate to
the crime. The total absence of motive also weighed
with the Court in acquitting the accused.
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CRLA No. - 1952 of 2022
27. Reliance was placed on State of U.P. v. Kishanpal
[ State of U.P. v. Kishanpal , (2008) 16 SCC 73 : (2010)
4 SCC (Cri) 182] wherein it was held that motive is
something which is primarily known to the accused
themselves and it is not possible for the prosecution
to always explain what prompted or excited them to
commit a particular crime. Motive is a very important
link in the circumstances which could prove the guilt
of the accused, and it loses its importance only when
there is direct evidence of eyewitnesses, which is
convincing and conclusive as to the guilt of the
accused.
28. However, it was also noticed in Kishanpal [ State of
U.P. v. Kishanpal , (2008) 16 SCC 73 : (2010) 4 SCC
(Cri) 182] that even if there may be a very strong
motive for the accused to commit a particular crime, it
does not lead to a conviction by itself, if the
eyewitnesses are not convincing or the chain of
circumstances is not complete.
29. The declaration in the cited decisions and the
decisions relied on therein, is to the effect that if
the case is built solely upon circumstantial evidence,
absence of motive will be a factor that weighs in
favour of the accused. Just as a strong motive does not
by itself result in a conviction, the absence of motive
on that sole ground cannot result in an acquittal. When
the eyewitnesses are not convincing, a strong motive
cannot by itself result in conviction, likewise when
the circumstances are very convincing and provide an
unbroken chain leading only to the conclusion of guilt
of the accused and not to any other hypothesis; the
total absence of a motive will be of no consequence.
30. We extract para 17 from a three-Judge Bench
decision, Jan Mohammad v. State of Bihar [ Jan Mohammad
v. State of Bihar , (1953) 1 SCC 5] ; which also is of
vintage flavour, succinctly putting forth the
proposition: (SCC p. 12)
“ 17 . Motive is a relevant fact under the Evidence Act
(Section 8). It is an important element in a chain of
presumptive proof where the evidence is purely
circumstantial, but it may lose importance in a case
where there is direct evidence by witnesses
implicating the accused. In a case such as the
present where the prosecution evidence itself shows
that the relations between the deceased and the
appellants were cordial, the absence of an apparent
motive, though not necessarily fatal to the
prosecution case, may reasonably be regarded as a
fact in favour of the accused. We think, therefore,
that the attempt to prove a motive against any of the
appellants has failed. [sic]”
31. Suresh Chandra Bahri v. State of Bihar [ Suresh
Chandra Bahri v. State of Bihar , 1995 Supp (1) SCC 80 :
1995 SCC (Cri) 60] held that in a case based on
circumstantial evidence, proof of motive would “supply
a link in the chain of circumstances” but all the same,
absence of motive cannot be a ground to altogether
reject the prosecution case. Para 21 reads as follows:
(SCC p. 95)
26
CRLA No. - 1952 of 2022
“ 21 . At the very outset we may mention that sometimes
motive plays an important role and becomes a
compelling force to commit a crime and therefore
motive behind the crime is a relevant factor for
which evidence may be adduced. A motive is something
which prompts a person to form an opinion or
intention to do certain illegal act or even a legal
act but with illegal means with a view to achieve
that intention. In a case where there is clear proof
of motive for the commission of the crime it affords
added support to the finding of the court that the
accused was guilty of the offence charged with. But
it has to be remembered that the absence of proof of
motive does not render the evidence bearing on the
guilt of the accused nonetheless untrustworthy or
unreliable because most often it is only the
perpetrator of the crime alone who knows as to what
circumstances prompted him to a certain course of
action leading to the commission of the crime .”
(emphasis supplied)
32. Sukhpal Singh v. State of Punjab [ Sukhpal Singh v.
State of Punjab , (2019) 15 SCC 622 : (2020) 1 SCC (Cri)
460] found that if prosecution establishes motive, it
will undoubtedly strengthen the prosecution case, but
to say that absence of motive will be fatal to the
prosecution, irrespective of other material before the
court in the form of circumstantial evidence is far-
fetched. Para 15 reads as follows: (SCC p. 627)
“ 15 . The last submission which we are called upon to
deal with is that there is no motive established
against the appellant for committing murder. It is
undoubtedly true that the question of motive may
assume significance in a prosecution case based on
circumstantial evidence. But the question is whether
in a case of circumstantial evidence inability on the
part of the prosecution to establish a motive is
fatal to the prosecution case. We would think that
while it is true that if the prosecution establishes
a motive for the accused to commit a crime it will
undoubtedly strengthen the prosecution version based
on circumstantial evidence, but that is far cry from
saying that the absence of a motive for the
commission of the crime by the accused will
irrespective of other material available before the
court by way of circumstantial evidence be fatal to
the prosecution . In such circumstances, on account of
the circumstances which stand established by evidence
as discussed above, we find no merit in the appeal
and same shall stand dismissed.”
(emphasis supplied)
33. Motive remains hidden in the inner recesses of the
mind of the perpetrator, which cannot, oftener than
ever, be ferreted out by the investigation agency.
Though in a case of circumstantial evidence, the
complete absence of motive would weigh in favour of the
accused, it cannot be declared as a general proposition
of universal application that, in the absence of
motive, the entire inculpatory circumstances should be
ignored and the accused acquitted.”
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CRLA No. - 1952 of 2022
42. In this case, we have relied on the absence of motive as
weakening one link in the chain of circumstances, which
otherwise is far from complete. It is not that on ground of absence
of motive alone, we opine in favour of the appellant.
43. There is yet another aspect of the matter. There is evidence
on behalf of the defence, that is to say, the testimony of DW-1, the
appellant's brother, who has said that the appellant would stay at
Delhi with him and work for a period of one month or 15 days and
periodically visit his family to provide for them. The brothers would
sell small time wares on the footpath of a particular road in order
to earn their livelihood. This witness has said that on the fateful
night, the appellant was with him and had come back from
Mathura after his last visit more than a week ago. This testimony
of DW-1 has to be read in conjunction with the evidence of PW-2,
who is a neighbour of the appellant's at Mathura. He has said in
his cross-examination that he had not seen the appellant at his
home for the past many days. This testimony of PW-2, while it may
not entirely support the stand of DW-1 that the two brothers worked
at Delhi with the appellant, visiting his family periodically at Mathura
because his children were studying there, appears to support the
fact that the appellant was not at Mathura for the past few days and
on the day of the crime. We emphasize that discarding defence
evidence and treating it always as second grade or unreliable
testimony, is neither a principle of law nor one of prudence. The
quality, character, origin and truthfulness of defence evidence must
be judged with an even scale, just as the case is with the
prosecution evidence. Here, both the evidence strongly support the
likelihood of the appellant, indeed staying with his brother at Delhi
and in all likelihood not being the present during some days past at
his home in Mathura before and at time of the crime. It is a matter,
which certainly weakens the prosecution case about completing that
infallible chain of circumstances, which alone can lead to conviction
in a case based entirely on circumstantial evidence.
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CRLA No. - 1952 of 2022
44. Upon consideration of all the circumstances, we find and
hold that the chain of circumstances is far from complete so as to
support a conviction for the appellant on the charge of murder of
his wife and two sons.
45. In the result, we allow this appeal, set aside the impugned
judgment and order dated 25/ 27.01.2022 passed by the
Additional Sessions Judge, Court No.01, Mathura in Sessions
Trial No. 817 of 2017 and acquit the appellant. The appellant is in
jail. He will be released forthwith unless wanted in connection with
some other case.
46. The appellant shall execute a personal bond in the sum of
Rs.25,000/- under Section 481 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (corresponding to Section 437-A of the Code of
Criminal Procedure, 1973) for his appearance, in the event of an
appeal being preferred against his acquittal.
47. Let the lower court records be returned.
(Sanjiv Kumar,J.) (J.J. Munir,J.)
July 13, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad