RAMANAND @ NANDLAL BHARTI versus STATE OF UTTAR PRADESH

[2022] 5 S.C.R.

ARAMANAND @ NANDLAL BHARTI

STATE OF UTTAR PRADESH

(Criminal Appeal Nos. 64-65 of 2022)

OCTOBER 13, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDJ. B. PARDIWALA, JJ.]

Penal Code, 1860: s.302 – Prosecution case was that onfateful day, appellant-accused murdered his wife and four childrenCwith sharp cutting weapon while they were sleeping – Motivebehind the murder was attributed to extra marital affair of appellantwith one married lady which was highly opposed by the deceased-wife – Discovery statement made by appellant and consequentlyrecovery made – Appellant said to have made extra judicialDconfession to prosecution witness – Trial court convicted theappellant and passed death sentence – High Court confirmed thedeath sentence – Hence instant appeal – Held: Present case is basedon circumstantial evidence – Mere discovery is insufficient to inferthe authorship of concealment by the person who discovered theweapon – The exact words of the accused person while makingEdiscovery statement was not deposed by prosecution witness –Further, the contents of panchnama were not proved – Credibilityof police witness (PW-6 and PW-7) was doubtful and evidence ofdiscovery was held to be unreliable – Credibility of extra judicialconfession was also doubted in view of oral evidence of prosecutionFwitness – As circumstance relating to extra judicial confession anddiscovery of weapon of offence were not established, the chain ofcircumstantial evidence was not established fully and thus othercircumstance such as motive or the evidence of false explanationoffered by the appellant as an additional link in chain of evidencewere not considered – Further, the explanation offered by theGaccused for injuries on his body could be said to be compatiblewith the defense story – Prosecution failed to establish the casebeyond reasonable doubt and therefore the conviction is set aside.

Evidence Act, 1872: s.8 – Relevance of Motive – CircumstantialEvidence – There cannot be straight jacket formula for appreciationH

of circumstantial evidence – Circumstances suggesting guilt mustbe cogently and firmly established – The same must be of definitetendency and conclusive in nature – The circumstances should formthe chain which conclusively points towards the guilt of accused inall human probability – Circumstantial evidence must be completeand should be devoid of any hypothesis giving room for accused’sinnocence but must support only one hypothesis i.e. his guilt – Motive,though not as such an element of crime, but it assumes greaterimportance in cases resting on circumstantial evidence – Absenceof motive could be missing link of incriminating circumstances,but once the prosecution has established the other incriminatingcircumstances to its entirety, absence of motive will not give anybenefit to the accused – Motive could be an important circumstancebut it per se does not take place as conclusive proof that the personconcerned was the author of the crime.

Evidence Act, 1872: s.27 – Discovery Statement – Informationreceived from the accused must result into discovery of fact for s.27 to apply – While making such deposition, the accused must be inpolice custody – Only so much of information as relates distinctlyto the fact thereby discovered is admissible – Further mere discoverycannot be interpreted as sufficient to infer authorship of concealmentby the person who discovered the weapon – There might be thepossibility that the person may have seen somebody concealing theweapon, therefore it cannot be presumed or inferred that because aperson discovered weapon, he was the person who concealed it,least it can be presumed that he used it.Evidence Act, 1872: Confession – Classification and Scope– Confession can be classified as Judicial and extra-judicial –Former relates to those which are made before the Magistrate orCourt – Extra Judicial are made before private individual andwhich may include judicial officer in private capacity andMagistrate not especially empowered u/s 164 CrPC or the one soempowered but receiving confession at stage where s.164 does notapply.

Evidence Act, 1872: Extra Judicial Confession – Weightage– It is weak type of evidence since it can be easily procuredwhenever direct evidence is not available – It is not open to theCourt to start with presumption that extra-judicial confession is

Aweak type of evidence – It can be accepted and can be the basis ofa conviction if it passes the test of credibility – Credibility can betested by keeping in mind that it comes from an unbiased witnesswho is not inimical to accused and who do not have motive forattributing an untruthful statement to the accused etc.BEvidence Act, 1872: Confession – Basis of Conviction –Explained – It is well settled that conviction can be based on avoluntarily confession but the rule of prudence requires thatwherever possible it should be corroborated by the independentevidence – Further Extra-Judicial confession of accused need notin all cases be corroborated – Also the confession procured underCpromise or threat or harassment is involuntary in nature and cannotbe use in evidence – Involuntary confession is not which is not theresult of free will of the maker.

Evidence Act, 1872: Code of Criminal Procedure, 1973 –s.313 – False Explanation tendered by the accused – Whether formsDadditional link in circumstantial evidence – Explained – Theprosecution must stand or fall on its own legs and it cannot deriveany strength from the weakness of the defence – It is not the lawwhere there is any infirmity or lacunae in the prosecution case, thesame could be cured or supplied by false defence or false pleaEwhich is not accepted by Court – Only when all the circumstantialevidence are well established which points towards the guilt thenonly false explanation or false defence tendered by accused can beused as additional link and not otherwise.

Evidence Act, 1872: Burden of Proof – Extent and Meaning– In criminal trial the burden on the accused is to show theF“preponderance of probabilty” – The accused is not under burdento prove his case beyond reasonable doubt unlike prosecution –The meaning which the term “preponderance of probabilty” carriesis something which connotes to “more probable and rational viewof the case”, not necessarily as certain as the pleading should be –GThe high standard of proof as required for prosecution is only toavoid wrongful conviction as the wrongful conviction leads togreater injustice than wrongful acquittal.

Constitution of India: Art.39A – Code of Criminal Procedure,1973 – s.304 – Legal Services Authorities Act, 1987 – s.9 – LegalH

aid to accused – Duty of State – Explained – What is meant by theduty of the State to ensure fair defence to an accused is not theemployment of defence counsel for namesake – It has to be theprovision of counsel who defends the accused diligently to thebest of his abilities – The presence of counsel on record meanseffective, genuine and faithful presence and not mere farcical,sham or virtual presence that is illusory, if not fraudulent –Indigence should never be ground for denying fair trial or equaljustice therefore, particular attention should be paid to appointcompetent advocates, equal to handling the complex cases, notpatronising gestures to raw entrants to the Bar.

Allowing the appeals, the court

HELD: 1.1 Although there can be no straight jacket formulafor appreciation of circumstantial evidence, yet to convict anaccused on the basis of circumstantial evidence, the Court mustfollow certain tests which are broadly as follows: Circumstancesfrom which an inference of guilt is sought to be drawn must becogently and firmly established; Those circumstances must be ofa definite tendency unerringly pointing towards guilt of theaccused and must be conclusive in nature; The circumstances, iftaken cumulatively, should form chain so complete that there isno escape from the conclusion that within all human probabilitythe crime was committed by the accused and none else; and Thecircumstantial evidence in order to sustain conviction must becomplete and incapable of explanation of any other hypothesisthan that of the guilt of the accused but should be inconsistentwith his innocence. In other words, the circumstances shouldexclude every possible hypothesis except the one to be proved.[Para 46][189-G-H; 190-A-D]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on.

1.2 The case is one of the circumstantial evidence as therewas no eye witness of the occurrence. It is settled principle oflaw that an accused can be punished if he is found guilty even incases of circumstantial evidence provided, the prosecution is ableto prove beyond reasonable doubt the complete chain of eventsand circumstances which definitely points towards the involvement

Aand guilty of the suspect or accused, as the case may be. Theaccused will not be entitled to acquittal merely because there isno eye witness in the case. It is also equally true that an accusedcan be convicted on the basis of circumstantial evidence subjectto satisfaction of the expected principles in that regard. [Para47][190-D-F]B

2.1 The conditions necessary for the applicability of Section27 of the Act are broadly as : (i) Discovery of fact in consequenceof an information received from accused; (iv) Discovery of suchfact to be deposed to; (iii) The accused must be in police custodywhen he gave information; and (iv) So much of information asCrelates distinctly to the fact thereby discovered is admissible.[Para 64][199-F-H]

2.2 What emerges from the evidence in the form ofpanchnama is that the appellant stated before the panch witnessesto the effect that “I will show you the weapon used in theDcommission of offence”. This is the exact statement which couldbe read from the discovery panchnama and the InvestigatingOfficer also could not have deposed as regards the exactstatement other than what has been recorded in the panchnama.This statement does not suggest that the appellant indicatedEanything about his involvement in concealment of the weapon.Mere discovery cannot be interpreted as sufficient to inferauthorship of concealment by the person who discovered theweapon. He could have derived knowledge of the existence ofthat weapon at the place through some other source. He mayhave even seen somebody concealing the weapon, and, therefore,Fit cannot be presumed or inferred that because persondiscovered weapon, he was the person who concealed it, least itcan be presumed that he used it. Therefore, even if discovery bythe appellant is accepted, what emerges from the panchnama ofthe discovery of weapon and the evidence in this regard is thatGhe disclosed that he would show the weapon used in thecommission of offence. [Para 67][201-D-G]

Murli v. State of Rajasthan (2009) 9 SCC 417 : [2009]13 SCR 378; Mohmed Inayatullah v. The State ofMaharashtra AIR (1976) SC 483 : [1976] 1 SCR 715;HEarabhadrappa v. State of Karnataka AIR (1983) SC

446 : [1983] 2 SCR 552; State of Uttar Pradesh v.Deoman Upadhyaya AIR (1960) SC 1125 : [1961] 1SCR 14 – relied on.

Pulukuri Kottaya and Others v. Emperor AIR 1947 PC67; Dudh Nath Pandey v. State of U.P. AIR 1981 SC911 : [1981] 2 SCR 771; Bodhraj Alias Bodha andOthers v. State of Jammu and Kashmir (2002) 8 SCC45 : [2002] 2 Suppl. SCR 67; A.N. Venkatesh v. State ofKarnataka (2005) 7 SCC 714 – referred to.

3.1 Confessions may be divided into two classes, i.e. judicialand extra judicial. Judicial confessions are those which are madebefore Magistrate or Court in the course of judicial proceedings.Extra judicial confessions are those which are made by the partyelsewhere than before Magistrate or Court. Extra judicialconfessions are generally those made by party to or before aprivate individual which includes even judicial officer in hisprivate capacity. It also includes Magistrate who is not especiallyempowered to record confessions under Section 164 of the CrPCor Magistrate so empowered but receiving the confession at astage when Section 164 does not apply. As to extra judicialconfessions, two questions arise: (i) were they made voluntarily?And (ii) are they true? [Para 80][208-B-C]

3.2 An extra judicial confession by its very nature is rathera weak type of evidence and requires appreciation with greatdeal of care and caution. Where an extra judicial confession issurrounded by suspicious circumstances, its credibility becomesdoubtful and it loses its importance like the case in hand. TheCourts generally look for an independent reliable corroborationbefore placing any reliance upon an extra judicial confession. [Para85][212-F-G]

State of Rajasthan v. Raja Ram (2003) 8 SCC 180 :[2003] 2 Suppl. SCR 445; Madan Gopal Kakkad v.Naval Dubey and Another (1992) 3 SCC 204 : [1992]2 SCR 921; Piara Singh and Others v. State of Punjab(1977) 4 SCC 452 : [1978] 1 SCR 597 – relied on.

Sahadevan and Another v. State of Tamil Nadu (2012)6 SCC 403 : [2012] 4 SCR 366 – referred to.

A4. It is settled principle of criminal jurisprudence that ina case based on circumstantial evidence, motive for committingthe crime on the part of the accused assumes greater importance.This Court in various decisions has laid down the principlesholding that motive for commission of offence no doubt assumesgreater importance in cases resting on circumstantial evidenceBthan those in which direct evidence regarding commission ofoffence is available. It is equally true that failure to prove motivein cases resting on circumstantial evidence is not fatal by itself.However, it is also well settled and it is trite in law that absenceof motive could be missing link of incriminating circumstances,Cbut once the prosecution has established the other incriminatingcircumstances to its entirety, absence of motive will not give anybenefit to the accused. Thus, even if it is believed that the accusedappellant had motive to commit the crime, the same may be animportant circumstance in case based on circumstantialevidence but cannot take the place as conclusive proof that theDperson concerned was the author of the crime. One could evensay that the presence of motive in the facts and circumstances ofthe case creates strong suspicion against the accused appellantbut suspicion, howsoever strong, cannot be substitute for proofof the guilt of the accused beyond reasonable doubt. [Paras 87,E90][213-D-E; 215-D]

Sampath Kumar v. Inspector of Police Krishnagiri(2012) 4 SCC 124 : [2012] 2 SCR 289 – relied on.

5.1 According to the trial court and the High Court, theexplanation offered by the accused appellant in regard to theFinjuries suffered by him on his head is established to be false. Insuch circumstances, both the courts took the view that the falseexplanation offered by the accused appellant is an additional linkin the chain of circumstances. It is not necessary for this court togo into the issue of false explanation, said to have been offeredGby the accused appellant as at the most false explanation can beused as an additional link in the chain of evidence led by theprosecution. This issue pales into insignificance as the variouslinks in the chain of evidence led by the prosecution having notbeen satisfactorily proved. [Para 92 and 100][215-H; 216-A; 218-C]H

5.2 It is well settled that the prosecution must stand or fallon its own legs and it cannot derive any strength from theweakness of the defence. Where various links in chain are inthemselves complete, then false plea or false defence may becalled into aid only to lend assurance to the Court. In other words,before using the additional link it must be proved that all thelinks in the chain are complete and do not suffer from any infirmity.It is not the law where there is any infirmity or lacunae in theprosecution case, the same could be cured or supplied by falsedefence or false plea which is not accepted by Court. [Para96][217-B-C]

5.3 Before false explanation can be used as an additionallink, the following essential conditions must be satisfied: (i)Various links in the chain of evidence led by the prosecution havebeen satisfactorily proved. (ii) Such circumstances points to theguilt of the accused as reasonable defence. (iii) The circumstanceis in proximity to the time and situation.If the aforesaid conditionsare fulfilled only then Court use false explanation or falsedefence as an additional link to lend as assurance to the Courtand not otherwise. [Para 97, 98][217-D-F]

Shankarlal Gyarasilal Dixit v. State of Maharashtra(1981) 2 SCC 35 : [1981] 2 SCR 384 – relied on.

Charles R. Cooper v. F. W. Slade (1857-59) 6 HLC 746– referred to.

6. None of the pieces of evidence relied on as incriminatingby the courts below, can be treated as incriminating pieces ofcircumstantial evidence against the accused. Realities or truthapart, the fundamental and basic presumption in theadministration of criminal law and justice delivery system is theinnocence of the alleged accused and till the charges are provedbeyond reasonable doubt on the basis of clear, cogent, credibleor unimpeachable evidence, the question of indicting or punishingan accused does not arise, merely carried away by heinous natureof the crime or the gruesome manner in which it was found tohave been committed. [Para 116][223-F-H]

A7. It is by far now well-settled for legal proposition that itis the duty of the court to see and ensure that an accused put ona criminal trial is effectively represented by defence counsel,and in the event on account of indigence, poverty or illiteracy orany other disabling factor, he is not able to engage counsel ofhis choice, it becomes the duty of the court to provide himBappropriate and meaningful legal aid at the State expense. Whatis meant by the duty of the State to ensure fair defence to anaccused is not the employment of defence counsel for namesake.It has to be the provision of counsel who defends the accuseddiligently to the best of his abilities. While the quality of theCdefence or the caliber of the counsel would not militate againstthe guarantee to fair trial sanctioned by Articles 21 and 22 resplyof the Constitution, threshold level of competence and duediligence in the discharge of his duties as defence counsel wouldcertainly be the constitutional guaranteed expectation. Thepresence of counsel on record means effective, genuine andDfaithful presence and not mere farcical, sham or virtualpresence that is illusory, if not fraudulent.[Para 119][224-G-H;225-A-B]

Dhananjay Shanker Shetty v. State of Maharashtra(2002) 6 SCC 596 : [2002] 1 Suppl. SCR 352; MoharERai and Bharath Rai v. State of Bihar AIR 1968 SC1281 : [1968] 3 SCR 525; Lakshmi Singh and Othersv. State of Bihar (1976) 4 SCC 394; Vijay Singh andOrs. v. State of U.P. (1990) CriLJ 1510; Ashish Bathamv. State of M.P. (2002) 7 SCC 317 : [2002] 2 Suppl.FSCR 146; Kishore Chand v. State of Himachal Pradesh(1991) 1 SCC 286 : [1990] 1 Suppl. SCR 105; ZahiraHabibullah Sheikh (5) and Another v. State of Gujaratand Others (2006) 3 SCC 374 : [2006] 2 SCR 1081;Ranchod Mathur Wasawa v. State of Gujarat (1974) 3SCC 581 : [1974 ] 2 SCR 72; Madhav HayawadanraoGHoskot v. State of Maharashtra (1978) 3 SCC 544 :[1979] 1 SCR 192; Subhash Chand v. State ofRajasthan (2002) 1 SCC 702 : [2001] 4 Suppl. SCR163 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 64-65 of 2022.

AFrom the Judgment and Order dated 09.07.2021 of the High Courtof Judicature at Allahabad, Lucknow Bench in Capital Sentence No.01of 2016 and Criminal Appeal No. 1959 of 2016.

S. Niranjan Reddy, Sr. Adv., Vibhor Jain, Ms. Stuti Rai, SahilRaveen, Ms. Akhila Palem, Mahfooz Ahsan Nazki, Advs. for theBAppellant.

Adarsh Upadhyay, Anurag Kishore, Amit Singh, Ajay Prajapati,B. N. Dubey, Aman Pathak, Advs. for the Respondent.

The Judgment of the Court was delivered by

CJ. B. PARDIWALA, J.

1. Mark Twain, the great American writer and philosopher, once

said:

“It is like this, take word, split it up into letters, the letters,may individually mean nothing but when they are combinedDthey will form word pregnant with meaning. That is the wayhow you have to consider the circumstantial evidence. Youhave to take all the circumstances together and judge foryourself whether the prosecution have established their case.”

2. These appeals, by special leave, arise out of the judgment andEorder dated 09.07.2021 passed by the High Court of Judicature atAllahabad, Bench at Lucknow confirming the death sentence awardedto the accused appellant herein.

3. The accused appellant has been held guilty of the offencepunishable under Section 302 of the Indian Penal Code (for short, “theFIPC”). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced theaccused appellant to death under Section 302 of the IPC and pay fineof Rs. 20,000/- and in default of payment of fine to undergo furtherrigorous imprisonment for one year. While the Sessions Judge, LakhimpurKheri made reference to the High Court for confirmation of deathsentence under Section 366 of the Code of Criminal Procedure (forGshort, “the CrPC”), the accused appellant preferred Criminal AppealNo. 1959 of 2016 putting in issue his conviction and sentence. The HighCourt dismissed the Criminal Appeal No. 1959 of 2016 filed by the accusedappellant thereby confirming the death reference under Section 366 ofthe CrPC.

4. In such circumstances referred to above, the accused appellantis here before this Court with the present appeals.

CASEOFTHEPROSECUTION

5. According to the case of the prosecution, the accused appellantRamanand was married to Sangeeta (deceased) for the past 12 yearsbefore 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 Guddiaged one and half month.

6. On the fateful night of the incident i.e. the intervening nightbetween 21[st] & 22[nd] of January, 2010 while the wife and four childrenwere sleeping in the house situated at the village Basdhiya, the accusedappellant is said to have mercilessly clobbered all the five to death witha sharp cutting weapon called Banka. At the relevant point of time, theson of the accused appellant was not residing with the family. The sonaged 10 years at the time of incident was residing at different villagewith one police constable. The motive behind the crime as put forwardby the prosecution is the extra marital affair of the accused appellantwith one married lady by name Manju. According to the prosecution, theaccused appellant desperately wanted to marry Manju. Further, the wifeof the accused appellant namely, Sangeeta (deceased) was highlyopposed to the relationship of her husband with Manju. In suchcircumstances, it is the case of the prosecution that the accused appellantdecided to terminate not only his wife Sangeeta but also his four minordaughters.

7. It all started with the First Information Report (FIR) lodged bythe PW-1, Shambhu Raidas, who happens to be the brother-in-law ofthe accused appellant (husband of the accused appellant’s sister). TheFIR came to be lodged by the PW-1, Shambhu Raidas at the DhaurharaPolice Station, District Lakhimpur Kheri on 22.01.2010 at 9:45 A.M.The FIR (Ext. 40) reads thus:-

“To, Station House Officer, Kotwali-Dhaurahara, DistrictKheri. Sir, It is submitted that the applicant Shambhu Raidasson of Late Shri Shyam Lal Raidas is the resident of village –Naamdar Purwa, Police Station – Kotwali Dhaurahara,District Lakhimpur Kheri. Today on 22.01.2010 when I waspresent at my home then at about 6.30 o’clock in the morning

my saala (brother-in-law) Ramanand Raidas son of GobreRaidas resident of Naamdar Purwa, Hamlet-Amethi, PoliceStation Dhaurahara, Lakhimpur Kheri came and told that,“Last night I was sleeping with my wife & children. Then atabout 1.00 o’clock in the night someone knocked at my door,I woke up and asked who was there but none replied. Then Iwent to the roof of my house and saw that four persons werestanding outside the house. I switched on the torch. I saw thatthat one person who was resident of village- Basadiha, PoliceStation Ishanaga and known to Ramanand fired on me bygun; I escaped and jumped and came down. Then one miscreanthit on my head by the butt of gun. I ran away and hid in thefields and saw that the miscreants climbed into my home. Isaw, smoke coming out of my home. Then I ran to BehnanPurwa and told about the incident at Crusher of Khaliq andto the people at Ramnagar Lahbadi but none came ahead. Icame running here”. Then I alongwith my nephew Pratapreached the house of Ramanand and saw that the wife ofRamanand namely Sangita, aged about 35 years, daughtersTulsi aged about 7 years, Laxmi aged about 5 years, Kajalaged about 3 years and girl child of about 1½ month hadbeen killed and the dead bodies were burning. Then I andPratap started extinguishing the fire by pouring water withthe aid of bucket. Behind us Ramanand too came to hishouse & home, sat in the courtyard and started warminghimself in front of the fire (Aag Taapne laga). On seeing this,both of us scolded him that, “Your wife-daughters have beenkilled and you are sitting in the courtyard and warmingyourself before fire”.

On this Ramanand got annoyed and went outside the house.The dead bodies are lying at the spot. I came to inform. Lodgethe case and take legal action.”

Thumb Impression (T.I.) Shambhu Raidas, Applicant, ShambhuRaidas son of Late Shyam Lal Raidas, Resident of villageNaamdar Purwa, Hamlet Amethi, Police Station Dhaurahara,District Khera. Date 22.01.2010.”

[Emphasis supplied]

8. Thus, it is the case of the prosecution that after the incident theaccused appellant went straight to the house of the PW-1, ShambhuRaidas at about 6:30 in the morning. The accused appellant is said tohave informed the PW-1, Shambhu Raidas as to what had transpired ataround 1 o’clock in the night. PW-1, Shambhu Raidas thought fit toinform the police and accordingly lodged the FIR as aforesaid againstfour unidentified persons.

9. Upon registration of the FIR, the police started the investigation.The investigating officer carried out the inquest proceedings of all thefive deceased persons. The dead bodies were sent to the Civil Hospitalfor post mortem. Thereafter, the investigating officer prepared siteplan of the crime scene (Ext. 6). The post mortem reports revealedthat all the five deceased had suffered incised wounds mostly on thehead and the neck region. The burn injuries were certified to be postmortem, whereas the incised wounds were certified as ante morteminjuries. The cause of death assigned in all the post mortem reports isshock and haemorrhage as result of ante mortem head injuries.10. The accused appellant is shown to have been arrested by theinvestigating officer on 24[th] of January, 2010. After the arrest and whilethe accused appellant was in custody, he is said to have made voluntarystatement that he would show the place where he had hidden the weaponof offence i.e. Banka and his blood stained clothes. Accordingly, thediscovery panchnama was drawn of the weapon of offence (Ext. 5). Itappears that in the course of investigation, the investigating officerrecorded the statements of PW-3, Baburam Hans son of Ramcharanand PW-4, Ram Kumar son of Paanchoo before whom the accusedappellant is said to have made extra judicial confession. The investigatingofficer also recorded the statement of the PW-1, Shambhu Raidas, thefirst informant and PW-2, Chhatrajpal Raidas (brother of the deceasedSangeeta).

11. At the end of the investigation, charge sheet came to be filedfor the offence of murder punishable under Section 302 of the IPC. TheMagistrate committed the case to the Court of Sessions Judge, LakhimpurKheri under Section 209 of the CrPC. Upon committal, the SessionsTrial No. 379 of 2010 came to be registered.

12. On 06.07.2010 the Additional District and Sessions Judge,Fast Track Court, Lakhimpur Kheri framed charge against the accused

176SUPREME COURT REPORTS[2022] 5 S.C.R.

Aappellant. The statement of the accused appellant was recorded. Theappellant did not admit the charge and claimed to be tried.

13. The prosecution adduced the following oral evidence insupport 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

D8.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 documentaryevidence:E

S.No. Documentary Evidence

1.Tahreer /Written Complaint

[Ex. Ka-1]

F2.Post-mortem report of deceased Laxmi

[Ex. Ka-2]

3.Post-mortem report of deceased Kajal

[Ex. Ka-3]

G4.Post-mortem report of deceased Chhoti @ Guddi

[Ex. Ka-4]

5.Discovery memorandum of murder weapon and clothes[Ex. Ka-5]

178SUPREME COURT REPORTS

[2022] 5 S.C.R.

A20.Letter to C.M.O. regarding deceased Km. Tulsi

[Ex. Ka-20]

21.Police Paper No. 13 of deceased Km. Tulsi

[Ex. Ka-21]

B22.Inquest Report of deceased Km. Kajal

[Ex. Ka-22]

23.Police Paper No. 13 of deceased Km. Kajal

[Ex. Ka-23]

C24.Photo lash of deceased Km. Kajal

[Ex. Ka-24]

25.Specimen seal regarding deceased Km. Kajal

[Ex. Ka-25]

26.Letter to Reserve Inspector regarding deceased Km.Kajal

[Ex. Ka-26]

27.Letter to C.M.O. regarding deceased Km.Kajal

E[Ex. Ka-27]

28.Inquest Report of deceased Km. Laxmi

[Ex. Ka- 28]

29.Photo lash of deceased Km. LaxmiF

[Ex. Ka-29]

30.Police Paper No. 13 of deceased Km. Laxmi

[Ex. Ka-30]

31.Specimen seal regarding deceased Km. LaxmiG[Ex. Ka-31]

32.Letter to Reserve Inspector regarding deceased Km.Laxmi

[Ex. Ka-32]

15. After completion of the oral as well as documentary evidence,the statements of the accused appellant under Section 313 of the CrPCwere recorded in which the accused appellant stated that he was innocent

Aand had been falsely implicated in the alleged crime. The accusedappellant took the defence that few individuals of rival party hadcommitted the murder of his wife and daughters as Sangeeta (deceased)was the sole eye witness to the murder of the brother of the accusedappellant. The trial against the accused persons who had killed the brotherof the accused appellant was pending at that point of time. The rivalBparty wanted to terminate Sangeeta and for that reason, four individualscame to his house at about 1 o’clock in the night of 22[nd] of January, 2010and mercilessly killed all his five family members and thereafter set thebodies on fire. The trial court disbelieved such defence of the accusedappellant.C16. At the conclusion of the trial, the Trial Judge convicted theaccused appellant for the offence under Section 302 of the IPC andsentenced him to death relying upon the following incriminatingcircumstances:

(i)Discovery of weapon of offence and blood-stained clothesDat the instance of the accused appellant.

(ii)Extra Judicial confession of the accused appellant beforetwo prosecution witnesses.

(iii)Strong motive to commit the crime.

E(iv)False explanation at the instance of the accused appellantand his unnatural conduct.

17. The appeal filed by the accused appellant in the High Courtalso failed and was ordered to be dismissed.

18. Being dissatisfied, the accused appellant has come up withFthe present appeals.SUBMISSIONSONBEHALFOFTHEACCUSEDAPPELLANT

19. Mr. S. Niranjan Reddy, the learned senior counsel appearingGfor the accused appellant vehemently submitted that both, the trial courtand the High Court committed serious error in holding the accusedappellant guilty of the offence of murder of his wife and four minordaughters. He would submit that in the course of the trial the prosecutionfailed to lead any credible evidence to connect the accused appellantwith the alleged crime. Mr. Reddy vehemently submitted that both theH

Courts below ought not to have accepted the evidence of PW-3, BabuRam Hans and PW-4, Ram Kumar resply so as to believe the extrajudicial confession alleged to have been made by the accused appellantbefore them. Mr. Reddy submitted that both the Courts below shouldhave discarded the evidence of discovery of weapon and the blood-stainedclothes as the prosecution has not been able to prove the authorship ofconcealment. He would submit that in case of circumstantial evidence,the prosecution is required to establish the continuity in the links of thechain of the circumstances so as to lead to the only and inescapableconclusion of the accused being the assailant, inconsistent or incompatiblewith the possibility of any other hypothesis compatible with the innocenceof the accused.

20. Mr. Reddy vociferously submitted that the PW-3 and PW-4resply are ‘got up’ witnesses. The evidence in the form of extra judicialconfession is nothing but fabricated piece of evidence at the instanceof the investigating officer just with view to bolster up the case of theprosecution in the absence of any direct evidence. He would submit thatboth these prosecution witnesses are absolutely unreliable.

21. Mr. Reddy submitted that in case which is based oncircumstantial evidence, motive plays an important role. He would submitthat the prosecution has not been able to prove the motive behind thecrime. The extra marital affair of the accused appellant with Manju andthe desire of the accused appellant to marry Manju at any cost has beenput forward as the motive behind the crime. However, there is no cogentand credible evidence in that regard. He would submit that evenotherwise an accused cannot be convicted and sentenced to death onlyon the circumstance of motive.

22. Mr. Reddy would submit that the prosecution has not beenable to explain the injuries suffered by the accused in any manner. Hewould submit that on the contrary, it is the accused who has been ableto explain how he suffered the injuries on his head and chest whileputting forward his defence before the High Court in his statementrecorded under Section 313 of the CrPC. Having noticed that the accusedappellant had suffered injuries on his head and was bleeding, the accusedappellant along with one police constable was sent for medical examinationat the District Hospital, District Kheri. The accused appellant was takento the hospital by constable viz. Brij Mohan Singh, Dhaurhara, DistrictKheri. The PW-9, Dr. Ankit Kumar Singh has issued medical certificate

AExt. 44 stating the nature of the injuries noticed on the body of theaccused appellant.

23. Mr. Reddy further submitted that once the extra judicialconfession alleged to have been made before the two prosecutionwitnesses i.e. the PW-3 and PW-4 resply and the evidence of the discoveryBof the weapon of offence is discarded and eschewed from consideration,then nothing remains in the case of the prosecution.

24. Lastly, Mr. Reddy would submit that howsoever unnaturalone may find the conduct of the accused after the alleged crime, thesame, by itself, is not sufficient to convict the accused for an offenceClike murder. In such circumstances referred to above, Mr. Reddy prayedthat there being merit in his appeals, those may be allowed. He prayedthat the order of conviction and death penalty be set aside and the appellantmay be acquitted of the charge of murder.

SUBMISSIONSONBEHALFOFTHESTATED

25. Mr. Adarsh Upadhyay, the learned counsel appearing for therespondent-State of Uttar Pradesh has on the other hand vehementlyopposed the appeals. He would submit that no error, not to speak of anyerror of law, could be said to have been committed by the Courts belowin holding the accused appellant guilty of the offence of murder andEimposing death penalty upon him for the gruesome murder of five of hisfamily members. He would submit that there is no good reason todisbelieve the evidence of PW-3, Babu Ram Hans and PW-4, RamKumar resply before whom the accused appellant made the extra judicialconfession. He further submitted that there is no good reason to evendisbelieve the discovery of the weapon of offence at the instance of theFaccused appellant. He would submit that over and above the twoincriminating circumstances in the form of extra judicial confession andthe discovery of weapon of offence, there was strong motive for theaccused appellant to commit the crime.26. Mr. Upadhyay vehemently submitted that the accused appellantGdesperately wanted to get married to Manju and his wife Sangeeta(deceased) was coming in his way. The accused appellant decided notonly to terminate his own wife but also mercilessly killed four of hisinnocent minor daughters so that he may not have to take care ofthem after marrying Manju. He would submit that it is one of the mostheinous and gruesome crimes committed by the accused appellant.H

27. He further submitted that the prosecution is not obliged toexplain the injuries suffered by the accused appellant as those injurieswere found to be superfluous in nature. The prosecution is obliged toexplain the injuries suffered by an accused, if any, only if such injuriesare grievous in nature which may throw considerable doubt on thevery genesis or the origin of the case of the prosecution. He wouldsubmit that the defence of the accused appellant that four unidentifiedpersons were the assailants stands falsified by his own unnatural conduct.Mr. Upadhyay would submit that the accused appellant has not beenable to explain in what circumstances the smell of kerosene was comingfrom his clothes as deposed by the witnesses and the doctor. He wouldargue 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 thecase of the accused appellant that one of the unidentified persons fireda shot from firearm is also falsified as no cartridge or any pellets wererecovered from the place of occurrence.

28. Mr. Upadhyay would submit that the scope of the presentappeals filed under Article 136 of the Constitution is very limited. It isonly in exceptional circumstances that this Court may disturb theconcurrent findings of guilt recorded by the trial court and High Courtrespectively. He would submit that the view taken by the trial court andthe High Court is correct and in no manner the appreciation of evidencecould be termed as perverse.

29. In such circumstances referred to above, Mr. Upadhyay praysthat there being no merit in the appeals filed by the accused appellant,those may be dismissed.

ORALEVIDENCEONRECORD

30. The PW-1, Shambhu Raidas is the first informant. He happensto be the brother-in-law of the accused appellant i.e. husband of theaccused appellant’s sister. On 22.01.2010 while he was at his house, theaccused appellant is said to have visited him at 6:30 in the morning andwas informed that at 1 o’clock in the night four unidentified personsknocked at his door. The accused appellant woke up and enquired whowas it. As no one replied, the accused appellant went on the roof of hishouse and saw four persons standing outside his house. The accusedappellant is said to have seen those four persons under the light of atorch. The accused appellant informed the PW-1 that one of the persons

Awas from the village Basadiha. One among the four persons fired at theaccused appellant. The accused appellant is said to have jumped fromthe roof top. At that point of time, one of the four hit the accused appellanton his head with the butt of the gun. The accused appellant thereafterran away towards farm. The accused appellant is said to have witnessedthose persons entering into his house from distance. After sometime,Bhe noticed smoke coming out of his house. The accused appellant wentto Behnanpurwa, Khalikpurwa and Lahki for help but he was not able toprocure any help. PW-1 has deposed that after the accused appellantnarrated the entire incident, he himself along with one Pratap reachedthe house of the accused appellant. The accused appellant alsoCaccompanied the PW-1, Shambhu Raidas and Pratap. When thePW- 1 reached the house of the accused appellant, he saw the deadbodies of Sangeeta and the four daughters burning. PW-1 with the helpof Pratap started to douse the fire with water. PW-1 has deposed thatwhile he himself and Pratap were trying to douse the fire, the accusedappellant took out his blood stained baniyaan (vest) and threw it in theDfire. The accused appellant thereafter started warming his body. Onseeing this, the PW-1 got annoyed and told the accused appellant thathow could he sit beside the fire when his wife and children had beenkilled. The PW-1, Shambhu Raidas thereafter went to the DhaurharaPolice Station and lodged the FIR. In the FIR, he named four unidentifiedEpersons as the suspects. The PW-1 has further deposed about the illicitrelationship of the accused appellant with Manju. He has deposed thatwhile the accused appellant was married to Sangeeta, he decided to getmarried to Manju. The engagement ceremony of Manju with accusedappellant Ramanand was also performed. However, before the accusedappellant could get married to Manju, he came to be arrested inFconnection with one offence registered against him under Section 307of the IPC. He has deposed that Sangeeta (deceased) was highly opposedto the idea of her husband Ramanand getting married to Manju. He hasfurther deposed that the accused appellant killed his wife and four childrenin the hope that he may receive some monetary compensation from theGGovernment. In his cross examination, the PW-1 has deposed that hishouse is at distance of one kilometre from the house of the accusedappellant. When the accused appellant reached his house at 6:30 in themorning on the day of the incident, the PW-1 found the accused appellantin lot of tension. In his cross examination, he has categorically deposedthat he was at the police station up to 2 o’clock in the night i.e. upto 23[rd]H

of January, 2010 at 2 A.M. He has deposed in so many words that theaccused appellant Ramanand was also with him at the police station allthroughout. He has deposed that while he left the police station,Ramanand – accused appellant was not allowed to leave the police station.He has deposed that Ramanand was challaned by the police on the thirdday, till then Ramanand was continuously staying at the police station.

31. What emerges from the evidence of the PW-1 is that afterthe incident, the accused appellant visited his house at 6:30 in the morningand narrated as to what had happened. PW-1 along with one Pratapthereafter reached the house of the accused appellant and saw thedead bodies of Sangeeta and four minor daughters burning. PW-1 triedto douse the fire by pouring water on the dead bodies with the help ofPratap. PW-1 has deposed about the illicit relationship of the accusedappellant with Manju. However, what is important in the evidence of thePW-1 is that from the time the PW-1 reached the police station till thelast the accused appellant was at the police station under the surveillanceof the police.32. The prosecution has examined the PW-2, Chhatrapal Raidas.The PW-2 happens to be the brother of the deceased Sangeeta Devi. Inhis examination in chief, he has deposed about the extra marital affair ofthe accused appellant with Manju. He has also deposed that ten daysbefore the incident, Sangeeta had visited his house and had narratedabout the harassment that was meted towards her by the accusedappellant. In his cross examination, he has deposed that he came toknow about the incident at 7 o’clock in the morning through Ramanand.According to the PW-2, Ramanand had visited his house and wasinformed that his wife and four children were burning in the house.According to the PW-2, the accused appellant saying so left his house.The PW-2 has further deposed in his cross examination that Pratap andPW-1, Shambhu Raidas were to be seen at the house of the accusedappellant dousing the fire with water. He has deposed that villagerswere standing outside the house of the accused appellant. He has deposedthat the clothes of Ramanand were soaked with blood. After sometime,the Police Inspector reached the place of incident. The PW-2 has deposedthat between 8 A.M. and 9 A.M. the police took the accused appellantto the police station. He has deposed that within no time, it was confirmedthat none else but Ramanand- accused appellant was the assailant.

A33. What emerges from the evidence of the PW-2 is that theaccused appellant was in an extra marital relationship with Manju anddesperately wanted to get married to Manju. Because of the extra maritalaffair, Sangeeta was being harassed by the accused appellant. However,what is important to note in the evidence of the PW-2 is that Ramanandhad visited his house also at 7 o’clock in the morning. The PW-2 alsoBsaw Pratap and PW-1, Shambhu Raidas at the house of the accusedappellant trying to douse the fire with water. One important feature ofthe deposition of the PW-2 is that the accused appellant was taken awayby 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 Hans toCprove the extra judicial confession. The PW-3 in his examination inchief has deposed that on 23.01.2010 while he was at his house, theaccused appellant came about 9 o’clock in the morning and informedabout the incident. According to the PW-3, the accused appellant is saidto have confessed before him of having brutally killed his wife and fourDminor children. According to the PW-3, the accused appellant sought hishelp as the PW-3 was leader of the BSP ruling party at the relevantpoint of time. However, the PW-3 declined to help the accused appellantin any manner. The PW-3 has deposed that he had narrated to the policeinspector about the confession said to have been made before him bythe accused appellant and his statement was also recorded by the police.EThe PW-3 in his cross examination has deposed that his village is at thedistance of 30 to 35 kilometres from Naamdar Purwa.

35. We shall explain as to how we are not inclined to believe theevidence of the PW-3, Babu Ram Hans little later in our judgment.

F36. The prosecution has examined the PW-4, Ram Kumar son ofPaanchoo. It is the case of the prosecution that even before the PW- 4,the accused appellant had made an extra judicial confession about thecrime. The PW-4 in his examination in chief has deposed that at therelevant time, he was the member of the District Panchayat of BSP. Hehas deposed that on the very day i.e. 22.01.2010 at 6:30 in the morningGRamanand came to his house and informed that his wife and childrenhad been assaulted and set on fire. The PW-4 told the accused appellantthat he would help him provided he would tell the truth. According to thePW-4, thereafter the accused appellant confessed before him that hehad killed his wife and children as he wanted to marry Manju and hisHwife Sangeeta was opposing him to get married. He has further deposedin his examination in chief that when he reached the village of theaccused appellant, he saw that the son of Ramanand was sitting onRamanand’s lap and Ramanand was crying and talking to his son sayingthat he had killed his mother and sisters. In his cross examination, hehas deposed that when the accused appellant visited his house at 6:30 inthe morning, he noticed that there was blood on his shirt and pant. Hehas further deposed in his cross examination that he had informed thepolice officers that the accused appellant had visited his house at 6:30 inthe morning.

37. What emerges from the evidence of the PW-4 is that on22.01.2010, the accused appellant had visited the house of the witnessat 6:30 in the morning and made an extra judicial confession about thealleged crime before him. We are not prepared to even believe thetestimony of the PW-4. We shall assign reasons little later as to whywe are not ready to believe the PW-4, Babu Ram Hans.

38. The prosecution has examined the PW-5, Dr. A.K. Sharmawho conducted the post mortems of the deceased Lakshmi, Kajal andChhoti @ Guddi resply. Dr. Sharma in his examination in chief has deposedthat on 23.01.2010, he was posted as radiologist at the District MahilaChikitsalaya, Lakhimpur. On that day, three dead bodies were broughtto the hospital for post mortem. He has deposed that he had performedthe post mortems of all the three dead bodies. He has recorded theinjuries noticed by him in the post mortem reports of each of the threedeceased persons. According to Dr. Sharma, the cause of death of allthe three deceased persons was shock and haemorrhage as result ofthe ante mortem injuries. He has deposed that he also noticed post mortemburn injuries on all the three dead bodies. He has deposed that the injuriescould have been caused by sharp-edged weapon like Banka.

39. Nothing turns around so far as the evidence of the PW-5,Dr. A.K. Sharma is concerned.

40. The prosecution has examined the PW-6, Uma ShankarMishra. At the relevant time, the PW-6, Uma Shankar Mishra wasserving as the Sub-Inspector, Chowki in-charge Bahjam, Police StationNeem Gaon, District Lakhimpur Kheri. He has deposed that on 24[th] ofNovember, 2010, he was posted at the Dhaurhara Police Station.

According to him, the accused appellant was arrested on24.11.2010 and was taken in custody. While in custody, the accused

Aappellant is said to have made statement on his own free will andvolition to show the place where he had hidden the weapon of offencei.e. Banka and his blood stained clothes. According to the PW-6, uponsuch statement being made by the accused appellant, he along with theinvestigating officer, PW-7 left for the place as led by the accused appellant.On the way, the PW-6 is said to have picked up PW-2, Chhatrapal son ofBRameshwar and Pratap son of Asharfi Lal, both residents of NaamdarPurwa to act as the panch witnesses for the purpose of drawing thediscovery panchnama. According to the PW-6, the accused appellantled the police party to coriander field and took out the weapon ofoffence i.e. Banka and also the blood stained clothes. The discoveryCpanchnama was accordingly drawn under Section 27 of the EvidenceAct, 1872. We do not propose to look into the cross examination of thePW-6 as there is hardly anything in the cross examination and notrelevant for our purpose.

41. The prosecution has examined the PW-7, Inspector YogendraDSingh as the investigating officer. The PW-7 in his examination in chiefhas deposed that he had recorded the statements of the PW-2, ChhatrapalRaidas and others on 23.01.2010. He has deposed that he arrested theaccused appellant on 24.01.2010. He has deposed that he recorded thestatements of the PW-3 and PW-4 resply on 25.01.2010. Nothing turnsaround in the cross examination of the PW-7, Yogendra Singh.E

42. It is not necessary for us to discuss the evidence of the PW-8Dr. S.P. Singh. Dr. Singh had performed the post mortems of the deceasedTulsi and Sangeeta.

43. The prosecution has examined the PW-9, Dr. Ankit KumarFSingh. According to the PW-9, the accused appellant was brought atthe C.H.C. Dhaurhara on 22.01.2010 at 10:30 in the morning for medicalexamination. He has deposed that on 22.01.2010 he was in-chargeMedical Officer at the C.H.C. Dhaurhara. He has deposed that theaccused appellant Ramanand was brought at the C.H.C. Dhaurhara byConstable Brij Mohan Singh of Police Station Dhaurhara along with aGpolice 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 cmabove left ear.

2. Lacerated wound 5 cm x 0.5 cm on middle of the head; 2 cmaway from Injury 1.

3. Lacerated wound 4.5 cm x 0.5 cm on middle of the head; 1cm away from Injury No. 2.

4. Superficial burn injury on left side of neck in length 8 cm x 6cm.

5. Superficial burn injury on right side of neck in length 10 cm x 7cm.”

44. Dr. Singh has further deposed that all the injuries were simplein nature and fresh. During the medical examination, the clothes of theaccused appellant were smelling of kerosene oil. In the cross examinationof Dr. Singh, he has deposed that the injuries Nos. 1, 2 and 3 resply notedduring the medical examination of the accused appellant could havebeen caused with the butt of gun. He has deposed that the injury Nos.4 and 5 resply could have been suffered by the accused appellant whiletrying to rescue. He has deposed that at the time of medical examinationof the accused appellant, there was no fresh bleeding from the wounds.At the time of cleaning the wounds with cotton, the blood started toooze. He has deposed that the injuries could not have been 12 hours old.

PRINCIPLES OF LAW RELATING TO APPRECIATIONOF CIRCUMSTANTIALEVIDENCE

45. In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, anEnglish Philosopher included whole chapter upon what lies next whenthe direct evidence does not lead to any special inference. It is calledCircumstantial Evidence. According to him, in every case, ofcircumstantial evidence, there are always at least two facts to beconsidered:

a) The Factum probandum, or say, the principal fact (the factthe existence of which is supposed or proposed to be proved; &

b) The Factum probans or the evidentiary fact (the fact fromthe existence of which that of the factum probandumis inferred).

46. Although there can be no straight jacket formula forappreciation of circumstantial evidence, yet to convict an accused onthe basis of circumstantial evidence, the Court must follow certain testswhich are broadly as follows:

A1.Circumstances from which an inference of guilt is soughtto be drawn must be cogently and firmly established;

2.Those circumstances must be of definite tendencyunerringly pointing towards guilt of the accused and mustbe conclusive in nature;

3.The circumstances, if taken cumulatively, should form achain so complete that there is no escape from the conclusionthat within all human probability the crime was committedby the accused and none else; and

4.The circumstantial evidence in order to sustain convictionmust be complete and incapable of explanation of any otherhypothesis than that of the guilt of the accused but shouldbe inconsistent with his innocence. In other words, thecircumstances should exclude every possible hypothesisexcept the one to be proved.

D47. There cannot be any dispute to the fact that the case on handis one of the circumstantial evidence as there was no eye witness of theoccurrence. It is settled principle of law that an accused can be punishedif he is found guilty even in cases of circumstantial evidence provided,the prosecution is able to prove beyond reasonable doubt the completeEchain of events and circumstances which definitely points towards theinvolvement and guilty of the suspect or accused, as the case may be.The accused will not be entitled to acquittal merely because there is noeye witness in the case. It is also equally true that an accused can beconvicted on the basis of circumstantial evidence subject to satisfactionof the expected principles in that regard.F48. three-Judge Bench of this Court in Sharad BirdhichandSarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:

“152. Before discussing the cases relied upon by the HighCourt we would like to cite few decisions on the nature,character and essential proof required in criminal case whichGrests on circumstantial evidence alone. The most fundamentaland basic decision of this Court is Hanumant v. State ofMadhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953Cri LJ 129]. This case has been uniformly followed and appliedby this Court in large number of later decisions up-to-date,

for instance, the cases of Tufail (Alias) Simmi v. State of UttarPradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] andRamgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR1972 SC 656]. It may be useful to extract what Mahajan, J.has laid down in Hanumant case [AIR 1952 SC 343 : 1952SCR 1091 : 1953 Cri LJ 129] :

It is well to remember that in cases where the evidence isof circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instancebe fully established, and all the facts so established shouldbe consistent only with the hypothesis of the guilt of theaccused. Again, the circumstances should be of conclusivenature and tendency and they should be such as to excludeevery hypothesis but the one proposed to be proved. In otherwords, there must be chain of evidence so far complete asnot to leave any reasonable ground for conclusion consistentwith the innocence of the accused and it must be such as toshow that within all human probability the act must have beendone by the accused.

153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case againstan accused can be said to be fully established:

(1) the circumstances from which the conclusion of guiltis to be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘may be’established. There is not only grammatical but legaldistinction between ‘may be proved’ and “must be or shouldbe proved” as was held by this Court in Shivaji SahabraoBobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973SCC (Cri) 1033 : 1973 Cri LJ 1783] where the followingobservations were made : [SCC para 19, p. 807 : SCC (Cri)p. 1047]

Certainly, it is primary principle that the accused mustbe and not merely may be guilty before court can convictand the mental distance between ‘may be’ and ‘must be’ islong and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of conclusive natureBand tendency,

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be chain of evidence so complete asnot to leave any reasonable ground for the conclusionCconsistent with the innocence of the accused and must showthat in all human probability the act must have been done bythe accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of case based on circumstantialDevidence.”

49. In an Essay on the Principles of Circumstantial Evidence byWilliam Wills by T. and J.W. Johnson and Co. 1872, it has been explainedas under:

“In matters of direct testimony, if credence be given to theErelators, the act of hearing and the act of belief, though reallynot so, seem to be contemporaneous. But the case is verydifferent when we have to determine upon circumstantialevidence, the judgment in respect of which is essentiallyinferential. There is no apparent necessary connectionFbetween the facts and the inference; the facts may be true,and the inference erroneous, and it is only by comparisonwith the results of observation in similar or analogouscircumstances, that we acquire confidence in the accuracy ofour conclusions. ?’”

The term PRESUMPTIVE is frequently used as synonymouswith CIRCUMSTANTIAL EVIDENCE; but it is not so used withstrict accuracy, The word” presumption,” ex vi termini, importsan inference from facts; and the adjunct “presumptive,” asapplied to evidentiary facts, implies the certainty of somerelation between the facts and the inference. Circumstances

generally, but not necessarily, lead to particular inferences;for the facts may be indisputable, and yet their relation to theprincipal fact may be only apparent, and not real; and evenwhen the connection is real, the deduction may be erroneous.Circumstantial and presumptive evidence differ, therefore, asgenus and species.

The force and effect of circumstantial evidence dependupon its incompatibility with, and incapability of, explanationor solution upon any other supposition than that of the truthof the fact which it is adduced to prove; the mode of argumentresembling the method of demonstration by the reductio adabsurdum.”

50. Thus, in view of the above, the Court must consider case ofcircumstantial evidence in light of the aforesaid settled legal propositions.In case of circumstantial evidence, the judgment remains essentiallyinferential. The inference is drawn from the established facts as thecircumstances lead to particular inferences. The Court has to draw aninference with respect to whether the chain of circumstances is complete,and when the circumstances therein are collectively considered, the samemust lead only to the irresistible conclusion that the accused alone is theperpetrator of the crime in question. All the circumstances so establishedmust be of conclusive nature, and consistent only with the hypothesisof the guilt of the accused.

ANALYSISOFTHEINCRIMINATING CIRCUMSTANCESRELIEDUPONBYTHETRIALCOURTANDTHEHIGHCOURT

DISCOVERY OF WEAPON OF OFFENCE ANDBLOOD-STAINED CLOTHES

51. It is the case of the prosecution that on 24.01.2010 the accusedappellant was picked up by the investigating officer from nearby busstand and was arrested in connection with the alleged crime. After thearrest of the accused appellant and while he being in the custody at thepolice station, he is said to have on his own free will and volition made astatement that he would like to point out the place where he had hiddenthe weapon of offence (Banka) and his blood-stained clothes after thecommission of the alleged crime. According to him, after such statementwas made by the accused appellant, he along with his subordinates set

Aforth 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 ontheir way, all of sudden, the investigating officer realized that he shouldhave two independent witnesses with him for the purpose of drawing thepanchnama of discovery. In such circumstances, while on the way theBinvestigating officer picked up PW-2, Chhatarpal Raidas and Pratap toact as the panch witnesses. According to the investigating officer theaccused led them to coriander field and from bush he took out theweapon of offence (Banka) and the blood-stained clothes. The weaponof offence and the blood-stained clothes were collected in the presenceCof the two panch witnesses and the panchnama Exh. 5 was accordinglydrawn. The weapon of offence and the blood stained clothes thereafterwere sent for the Serological Test to the Forensic Science laboratory.We are of the view that the Courts below committed serious error inrelying upon this piece of evidence of discovery of fact, i.e., the weapon& clothes at the instance of the accused as one of the incriminatingDcircumstances in the chain of other circumstances. We shall explainhere below why we are saying so.

52. Section 27 of the Evidence Act, 1872 reads thus:

“27. How much of information received from accused mayEbe proved.—Provided that, when any fact is deposed to asdiscovered in consequence of information received from aperson accused of any offence, in the custody of policeofficer, so much of such information, whether it amounts to aconfession or not, as relates distinctly to the fact therebydiscovered, may be proved.”F

53. If, it is say of the investigating officer that the accused appellantwhile in custody on his own free will and volition made statement thathe would lead to the place where he had hidden the weapon of offencealong with his blood stained clothes then the first thing that the investigatingofficer should have done was to call for two independent witnesses atGthe police station itself. Once the two independent witnesses arrive atthe police station thereafter in their presence the accused should be askedto make an appropriate statement as he may desire in regard to pointingout the place where he is said to have hidden the weapon of offence.When the accused while in custody makes such statement before theHtwo independent witnesses (panch witnesses) the exact statement orrather the exact words uttered by the accused should be incorporatedin the first part of the panchnama that the investigating officer maydraw in accordance with law. This first part of the panchnama for thepurpose of Section 27 of the Evidence Act is always drawn at thepolice station in the presence of the independent witnesses so as to lendcredence that particular statement was made by the accused expressinghis willingness on his own free will and volition to point out the placewhere the weapon of offence or any other article used in the commissionof the offence had been hidden. Once the first part of the panchnama iscompleted thereafter the police party along with the accused and thetwo independent witnesses (panch witnesses) would proceed to theparticular place as may be led by the accused. If from that particularplace anything like the weapon of offence or blood stained clothes orany other article is discovered then that part of the entire process wouldform the second part of the panchnama. This is how the law expects theinvestigating officer to draw the discovery panchnama as contemplatedunder Section 27 of the Evidence Act. If we read the entire oral evidenceof the investigating officer then it is clear that the same is deficient inall the aforesaid relevant aspects of the matter.

54. The reason why we are not ready or rather reluctant to acceptthe evidence of discovery is that the investigating officer in his oralevidence has not said about the exact words uttered by the accused atthe police station. The second reason to discard the evidence of discoveryis that the investigating officer has failed to prove the contents of thediscovery panchnama. The third reason to discard the evidence is thateven if the entire oral evidence of the investigating officer is acceptedas it is, what is lacking is the authorship of concealment. The fourthreason to discard the evidence of the discovery is that although one ofthe panch witnesses PW-2, Chhatarpal Raidas was examined by theprosecution in the course of the trial, yet has not said word that he hadalso acted as panch witness for the purpose of discovery of the weaponof offence and the blood stained clothes. The second panch witnessnamely Pratap though available was not examined by the prosecutionfor some reason. Therefore, we are now left with the evidence of theinvestigating officer so far as the discovery of the weapon of offenceand the blood stained clothes as one of the incriminating pieces ofcircumstances is concerned. We are conscious of the position of lawthat even if the independent witnesses to the discovery panchnama arenot examined or if no witness was present at the time of discovery or

Aif no person had agreed to affix his signature on the document, it isdifficult to lay down, as proposition of law, that the document so preparedby the police officer must be treated as tainted and the discovery evidenceunreliable. In such circumstances, the Court has to consider the evidenceof the investigating officer who deposed to the fact of discovery basedon the statement elicited from the accused on its own worth.B

55. Applying the aforesaid principle of law, we find the evidenceof the investigating officer not only unreliable but we can go to the extentto saying that the same does not constitute legal evidence.

56. The requirement of law that needs to be fulfilled beforeCaccepting the evidence of discovery is that by proving the contents ofthe panchnama. The investigating officer in his deposition is obliged inlaw to prove the contents of the panchnama and it is only if the investigatingofficer has successfully proved the contents of the discovery panchnamain accordance with law, then in that case the prosecution may be justifiedin relying upon such evidence and the trial court may also accept theDevidence. In the present case, what we have noticed from the oralevidence of the investigating officer, PW-7, Yogendra Singh is that hehas not proved the contents of the discovery panchnama and all that hehas deposed is that as the accused expressed his willingness to pointout the weapon of offence the same was discovered under panchnama.EWe have minutely gone through this part of the evidence of theinvestigating officer and are convinced that by no stretch of imaginationit could be said that the investigating officer has proved the contents ofthe discovery panchnama (Exh.5). There is reason why we are layingemphasis on proving the contents of the panchnama at the end of theinvestigating officer, more particularly when the independent panchFwitnesses though examined yet have not said word about such discoveryor turned hostile and have not supported the prosecution. In order toenable the Court to safely rely upon the evidence of the investigatingofficer, it is necessary that the exact words attributed to an accused, asstatement made by him, be brought on record and, for this purpose theGinvestigating officer is obliged to depose in his evidence the exactstatement and not by merely saying that discovery panchnama ofweapon of offence was drawn as the accused was willing to take it outfrom particular place.

57. Let us see what has been exactly stated in the discoverypanchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portionas under:

“Today on 24.1.2010, the arrested accused Ramanand aliasNandlal Bharti son of Late Shri Gobre, resident of- NaamdarPurwa, Hamlet- Amethi, original resident of village-Basadhiya, Police Station- Isanagar, District- LakhimpurKheri hasbeentakenoutofthelock-up,takenin confidenceand then interrogated by me- the Station House OfficerYogendra SinghbeforeHamrahS.S.I. Shri Uma ShankarMishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598Prabhu Dayal, Co.993SantoshKumarSingh,Co.394ShrawanKumarthen heconfessedthe offenceoccurredintheincidentand weepinglysaidinapologizingmannerthat,“Imyselfhave committed this crime to get government grantfor being rich manandtomarryKm.ManjuD/oKanhai,residentof Pakadiya, Police Station- Tambaur, District- Sitapurregarding whereof the detailed statement has been recordedby you. The baankausedintheincidentandthe pant-shirt,on which blood spilled from the bodies of deceased personsgot stained and which had been put off by me due to fear,have been kept hidden at secret place by me which I canget recovered by going there.” In expectation of recovery ofmurder weapon and blood-stained clothes, I- the Station HouseOfficer Yogendra Singh alongwith aforesaid Hamrahisdeparted carrying accused Ramanand alias Nandlal Bhartiby official jeep UP70AG0326 alongwith driver Raj KishorDixit for the destination pointed out by the accused, vide RapatNo.- 7 time 07.15…” [Emphasis supplied]

58. We shall now look into the oral evidence of the PW-7,Investigating Officer wherein, in his examination in chief, he has deposedas under:

“In January 2010 I was posted as Station House Officer,Kotwali Dhaurahara. On 22.1.10, I myself had taken theinvestigation of aforesaid case. On that day I had copied chik,rapat and recorded the statements of chik writer H. ConstableDhaniram Verma and complainant of the case. After recordingthe statement of complainant of the case Shambhu Raidas I

Ainspected the occurrence spot on his pointing out and preparedthe site plan which is present on record; on which ExhibitKa-6 has been marked. And I had also recorded the statementof hearsay witnesses Ahmad Hussain and Nizamuddin. On23.1.10, I recorded the statements of witnesses Kshatrapal,Rustam Raidas. On 24.1.10,IarrestedaccusedRamanandBandrecordedhis statementandwhenheexpressedthat-hemayget recoveredthemurderweaponusedintheincident,Irecovered the murder weapon baanka before the witnesseson his pointing out;which had been sealed-stamped at thespot and its recovery memo had been prepared at the spotCitself, which is present on record as Exhibit Ka-5….”

[Emphasis supplied]

59. We shall also look into the oral evidence of the PW-6, UmaShankar Mishra who at the relevant point of time was serving as aSub-Inspector Chowki In-charge Bahjam, Police Station. It appears thatDthe PW-6 had also participated in the proceedings of discoverypanchnama. 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, PoliceStation-Dhaurahara, domicile of village Basadhiya, PoliceEStation- Isha Ganj, District- Kheri, the arrested accused ofCrime No. 49/10 U/S 302 State versus Ramanand alias NandlalBharti, was taken out of male lock up by the then In-chargeInspector and followers S.I. Nand Kumar, Co. Mo. Usman,Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. ShravanFKumar, and interrogated by the Incharge Inspector in mypresence, during whichhe confessed and told that he wouldget recovered the murder weapon used in the murder and hisblood stained pant-shirt whichhehadkepthiddenatasecretplace. On this, expecting the recovery of murder weapon andblood stained clothes,theSHOalongwithfollowersandforce,Gcarrying accused Ramanand with him, departed on an officialjeep ~ videGDNo.7time7:15a.mdated24.01.2010.Ontheway, he picked up public witnesses Chhatrapal S/oRameshwar andPratapS/oAsharfiLal,bothresidentsof”Naamdar Purwa,Hamlet-Amethiforthepurposeofrecovery.

[Emphasis supplied]

60. From the aforesaid two things are quite evident. In the originalpanchnama (Exh.5), the statement said to have been made by the accusedappellant figures, however, in the oral evidence of the PW-7, investigatingofficer & PW-6, Sub-Inspector the exact statement has not been deposed,more particularly when it comes to the authorship of concealment. Thecontents of the panchnama cannot be read into evidence as those do notconstitute substantive evidence.

61. Further, the examination-in-chief of the PW-6, Sub-Inspectorand PW-7, investigating officer does not indicate that they were readover the panchnama (Exh.5) before it was exhibited, since one of thepanch witnesses was not examined and the second panch witness thoughexamined yet has not said word about the proceedings of the discoverypanchnama. Everything thereafter fell upon the oral evidence of theinvestigating officer and the Sub-Inspector (PW-6).

62. In the aforesaid context, we may refer to and rely upon thedecision of this Court in the case of Murli v. State of Rajasthan reportedin (2009) 9 SCC 417, held as under:

“34.Thecontentsofthepanchnamaarenotthesubstantiveevidence.Thelawissettledonthatissue.Whatis substantiveevidenceiswhathasbeenstatedbythe panchasorthepersonconcernedinthewitnessbox…….”

[Emphasis supplied]

63. One another serious infirmity which has surfaced is in regardto the authorship of concealment by the person who is said to havediscovered the weapon.

64. The conditions necessary for the applicability of Section 27of the Act are broadly as under:

(1)Discovery of fact in consequence of an informationreceived from accused;

(2)Discovery of such fact to be deposed to;

(3)The accused must be in police custody when he gaveinformation; and

(4)So much of information as relates distinctly to the factthereby discovered is admissible – Mohmed Inayatullah v.The State of Maharashtra: AIR (1976) SC 483

ATwo conditions for application –

(1)information must be such as has caused discovery of thefact; and

(2)information must relate distinctly to the fact discovered -Earabhadrappa v. State of Karnataka: AIR (1983) SCB446"

65. We may refer to and rely upon Constitution Bench decisionof this Court in the case of State of Uttar Pradesh v. DeomanUpadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph-71explains the position of law as regards the Section 27 of the EvidenceCAct:

“71. The law has thus made classification of accused personsinto two: (1) those who have the danger brought home tothem by detention on charge; and (2) those who are yetfree. In the former category are also those personswhoDsurrendertothecustody by words or action.Theprotectiongiventothesetwoclassesis different.Inthecaseofpersonsbelongingtothefirst category the law has ruled that theirstatements are not admissible, and in the case of the secondcategory, only thatportion,ofthestatementisadmissibleasEis guaranteed by the discovery of relevant fact unknownbefore the statement to the investigating authority. Thatstatement may even be confessional in nature, as when thepersonincustodysays:“I pushed him down such and suchmineshaft”, and the body of the victim is found asaresult,anditcanbeprovedthathisdeathwasdue toinjuriesreceivedFbyafalldownthemineshaft.”

[Emphasis supplied]

66. The scope and ambit of Section 27 of the Evidence Act wereilluminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR1947 PC 67, which have become locus classicus, in the following words:G

“10. ….It is fallacious to treat the “fact discovered” withinthe section as equivalent to the object produced; the factdiscovered embraces the place from which the object isproduced and the knowledge of the accused as to this, andthe information given must relate distinctly to this fact.

Information as to past user, or the past history, of the objectproduced is not related to its discovery in the setting in whichit is discovered. Information supplied by person in custodythat “I will produce knife concealed in the roof of my house”does not lead to the discovery of knife; knives werediscovered many years ago. It leads to the discovery of thefact that knife is concealed in the house of the informant tohis knowledge, and if the knife is proved to have been usedin the commission of the offence, the fact discovered is veryrelevant. But if to the statement the words be added “withwhich I stabbed A” these words are inadmissible since theydo not relate to the discovery of the knife in the house of theinformant.”67. What emerges from the evidence in the form of panchnama isthat the appellant stated before the panch witnesses to the effect that“I will show you the weapon used in the commission of offence”. Thisis the exact statement which we could read from the discovery panchnamaand the Investigating Officer also could not have deposed as regardsthe exact statement other than what has been recorded in the panchnama.This statement does not suggest that the appellant indicated anythingabout his involvement in concealment of the weapon. Mere discoverycannot be interpreted as sufficient to infer authorship of concealment bythe person who discovered the weapon. He could have derived knowledgeof the existence of that weapon at the place through some other source.He may have even seen somebody concealing the weapon, and, therefore,it cannot be presumed or inferred that because person discoveredweapon, he was the person who concealed it, least it can be presumedthat he used it. Therefore, even if discovery by the appellant is accepted,what emerges from the panchnama of the discovery of weapon and theevidence in this regard is that he disclosed that he would show the weaponused in the commission of offence. In the same manner we have alsoperused the panchnama Exh.32 wherein the statement said to have beenmade by the accused before the panchas in exact words is “the accusedresident of Roghada village on his own free will informs to take out cashand other valuables”.

68. What emerges from the evidence of the investigating officeris that the accused appellant stated before him while he was in custody,“I may get discovered the murder weapon used in the incident”. This

Astatement does not indicate or suggest that the accused appellant indicatedanything about his involvement in the concealment of the weapon. It is avague statement. Mere discovery cannot be interpreted as sufficient toinfer authorship of concealment by the person who discovered the weapon.He could have derived knowledge of the existence of that weapon atthe place through some other source also.B

He might have even seen somebody concealing the weapon, and,therefore, it cannot be presumed or inferred that because persondiscovered the weapon, he was the person who had concealed it, least itcan be presumed that he used it. Therefore, even if discovery by theappellant is accepted, what emerges from the substantive evidence asCregards the discovery of weapon is that the appellant disclosed that hewould show the weapon used in the commission of offence.

69. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911,this Court observed that the evidence of discovery of pistol at the instanceof the appellant cannot, by itself, prove that he who pointed out theDweapon wielded it in the offence. The statement accompanying thediscovery was found to be vague to identify the authorship of concealmentand it was held that pointing out of the weapon may, at the best, provethe appellant’s knowledge as to where the weapon was kept.

70. Thus, in the absence of exact words, attributed to an accusedEperson, as statement made by him being deposed by the investigatingofficer in his evidence, and also without proving the contents of thepanchnama (Exh.5), the trial court as well as the High Court was notjustified in placing reliance upon the circumstance of discovery ofweapon.F71. If it is the case of the prosecution that the PW-2, ChhatarpalRaidas, s/o Rameshwar Raidas had acted as one of the panch witnessesto the drawing of the discovery panchnama, then why the PW-2,Chhatarpal Raidas in his oral evidence has not said word about hehaving acted as panch witness and the discovery of the weapon of theoffence and blood stained clothes being made in his presence. The factGthat he is absolutely silent in his oral evidence on the aforesaid itselfcasts doubt on the very credibility of the two police witnesses i.e.PW-6 and PW-7 respectively.72. In the aforesaid context, we may also refer to decision ofthis Court in the case of Bodhraj alias Bodha and Others v. State ofHJammu and Kashmir reported in (2002) 8 SCC 45, as under:

“18. …..It would appear that under Section 27 as it stands inorder to render the evidence leading to discovery of any factadmissible, the information must come from any accused incustody of the police. The requirement of police custody isproductive of extremely anomalous results and may lead tothe exclusion of much valuable evidence in cases where aperson, who is subsequently taken into custody and becomesan accused, after committing crime meets police officeror voluntarily goes to him or to the police station and statesthe circumstances of the crime which lead to the discovery ofthe dead body, weapon or any other material fact, inconsequence of the information thus received from him. Thisinformation which is otherwise admissible becomesinadmissible under Section 27 if the information did not comefrom person in the custody of police officer or did comefrom person not in the custody of police officer. Thestatement which is admissible under Section 27 is the one whichis the information leading to discovery. Thus,whatisadmissiblebeingtheinformation,thesamehas to be provedandnottheopinionformedonitbythe police officer. In otherwords, the exact information given by the accusedwhileincustodywhichledtorecoveryof the articleshasto be proved.It is, therefore, necessary for the benefit of both the accusedand the prosecution that informationgivenshouldberecordedand proved and if notsorecorded,theexactinformationmustbeadduced throughevidence.Thebasicidea embedded inSection 27 of the Evidence Act is the doctrine of confirmationby subsequentevents.Thedoctrineisfoundedonthe principlethatifanyfactisdiscoveredasasearchmade onthestrengthofanyinformationobtainedfroma prisoner,suchadiscoveryisaguaranteethatthe informationsuppliedbytheprisoneristrue. The information might be confessional ornon-inculpatory in nature but if it results in discovery of afact, it becomes reliable information. It is now well settledthat recovery of an object is not discovery of fact envisagedin the section. Decision of the Privy Council in PulukuriKottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA65] is the most-quoted authority for supporting theinterpretation that the “fact discovered” envisaged in the

Asection embraces the place from which the object was produced,the knowledge of the accused as to it, but the informationgiven must relate distinctly to that effect. (See State ofMaharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 :2000 SCC (Cri) 1088 : 2000 Cri LJ 2301].) No doubt, theinformation permitted to be admitted in evidence is confinedBto that portion of the information which “distinctly relates tothe fact thereby discovered”. But the information to getadmissibility need not be so truncated as to make it insensibleor incomprehensible. The extent of information admitted shouldbe consistent with understandability. Mere statementthattheCaccusedledthepoliceandthe witnesses to the place wherehe had concealed the articlesisnotindicativeofthe”informationgiven.

[Emphasis supplied]

73. Mr. Upadhyay, the learned counsel for the State would submitDthat even while discarding the evidence in the form of discoverypanchnama the conduct of the appellant herein would be relevant underSection 8 of the Evidence Act. The evidence of discovery would beadmissible as conduct under Section 8 of the Evidence Act quite apartfrom the admissibility of the disclosure statement under Section 27 of theEsaid Act, as this Court observed in A.N. Venkatesh vs. State ofKarnataka, (2005) 7 SCC 714:

“9. By virtue of Section 8 of the Evidence Act, the conduct ofthe accused person is relevant, if such conduct influences oris influenced by any fact in issue or relevant fact. TheevidenceFofthecircumstance,simpliciter,that the accused pointed outto the police officer, the place wherethedeadbodyofthekidnapped boy was found and on theirpointing out the bodywas exhumed, would be admissible as conduct under Section8 irrespective of thefactwhetherthestatementmadebytheaccused contemporaneously with or antecedent to suchGconduct fallswithinthepurviewofSection27ornotasheldbythis Court in Prakash Chand v. State (Delhi Admn.)[(1979)3SCC90:1979SCC(Cri)656:AIR1979 SC 400]. Even ifwe hold that the disclosure statement made by theaccused-appellants (Exts. P-15 and P-16) is not admissible

under Section 27 of the Evidence Act, still it is relevant underSection 8…..”

[Emphasis supplied]

74. In the aforesaid context, we would like to sound note ofcaution. Although the conduct of an accused may be relevant factunder Section 8 of the Evidence Act, yet the same, by itself, cannot bea ground to convict him or hold him guilty and that too, for seriousoffence like murder. Like any other piece of evidence, the conduct ofan accused is also one of the circumstances which the court may takeinto consideration along with the other evidence on record, direct orindirect. What we are trying to convey is that the conduct of the accusedalone, though may be relevant under Section 8 of the Evidence Act,cannot form the basis of conviction.

75. Thus, in view of the aforesaid discussion, we have reached tothe conclusion that the evidence of discovery of the weapon and theblood stained clothes at the instance of the accused appellant can hardlybe treated as legal evidence, more particularly, considering the variouslegal infirmities in the same.

EXTRAJUDICIALCONFESSION

76. It is the case of the prosecution that on 23.01.2010 the accusedappellant is said to have visited the house of the PW-3, Babu RamHans at about 9:00 o’clock in the morning and sought his help. Whileseeking help from the PW-3, Babu Ram Hans, the accused appellant issaid to have made an extra judicial confession that he had brutally killedhis wife Sangeeta for not giving consent to him to marry Manju.

The accused appellant is also said to have made an extra judicialconfession to the PW-3, Babu Ram Hans that he had also killed his fourdaughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had committeda huge mistake. The trial court and the High Court have believed the socalled extra judicial confession said to have been made by the accusedappellant before the PW-3, Babu Ram Hans. However, the trial courtas well as the High Court should have put question to themselvesbefore believing the extra judicial confession whether the accusedappellant was free man on 23.01.2010 so as to reach the house ofPW-3, Babu Ram Hans at 9:00 o’clock in the morning and make anextra judicial confession. This is one of the basic infirmities we havenoticed in the judgment of both the Courts. There is cogent evidence on

Arecord to indicate that on 22.01.2010, the accused appellant first visitedthe house of PW-1, Shambhu Raidas (first informant) and narrated aboutthe incident. The PW-1, Shambhu Raidas thereafter lodged the FirstInformation Report (FIR) at the police station and as deposed by him,the accused appellant all throughout was at the police station. If on22.01.2010 the accused is sent for medical examination along with aBpolice yadi accompanied by police constable to the hospital then howdoes it lie in the mouth of the prosecution to say that after the medicalexamination the accused appellant was allowed to go home and movearound freely. The witnesses have said in their oral evidence that theaccused appellant was picked up by the police on 22.01.2010 in theCearly morning itself. This entire case put up by the prosecution that anextra judicial confession was made by the accused appellant before thePW-3, Babu Ram Hans on 23.01.2010 appears to be fabricated andengineered only to bolster up the case of the prosecution.

77. It is also the case of the prosecution that similar such extraDjudicial confession was made by the accused appellant before the PW-4, Ram Kumar, S/o Paanchoo on the very same day of the incident itselfi.e. 22.01.2010 at 06:30 in the morning. If we peruse the oral evidenceof the PW-4, Ram Kumar then according to him at the relevant point oftime he was member of the District Panchayat. According to PW-4,Ram Kumar, the accused appellant had visited his house at 06:30 in theEmorning and made an extra judicial confession that he had committed aserious crime. How does the prosecution expect us to believe even thesecond extra judicial confession alleged to have been made before thePW-4, Ram Kumar? How does the prosecution expect us to believe thatthe accused appellant was present at three different places on or aboutFthe same time. Either we believe PW-1, Shambhu Raidas (first informant)that the accused appellant visited his house at 06:30 in morning or webelieve the PW- 2, Chhatrapal Raidas, who has deposed that the accusedappellant had visited his house at 07:00 o’clock in the morning or webelieve the PW-4, Ram Kumar that the accused appellant had visited

his house at 06:30 in the morning. How is it possible for the accusedGappellant to be present at three different places in or around between06:30 A.M. to 07:30 A.M. One another aspect that makes the oralevidence of the PW-4, Ram Kumar very doubtful is that his house issituated at distance of 6-7 kilometers from Dhaurhara and according tothe PW-4, the accused appellant visited his house all the way walkingHfrom his own house. The PW-4, Ram Kumar also appears to be ‘got

up’ witness only for the purpose of creating evidence in the form ofextra judicial confession. At this stage, we may once again go back tothe oral evidence of the PW-1, Shambhu Raidas (Exh.1). In his evidence,he has said, “the inspector had not interrogated me at the policestation. The inspector had visited the place of the incident in hisvehicle. I left the police station at the 02:00 o’clock in the night. Ihad stayed at the police station right from the time I lodged the FIRin the morning till 02:00 o’clock in the night and Ramanand alsostayed with me at the police station. The police official had challanedRamanand on thethirdday.TillthenRamanandwascontinuouslystayingatthe policestation.[Emphasis supplied]78. The PW-2, Chhatrapal Raidas in his evidence has deposed, “Icame to know about the incident at 07:00 o’clock in the morning. Icame to know through Ramanand. Ramanand had come to my houseat 07:00 o’clock. Ramanand was alone then. Ramanand told methat his wife and children were burning in the house; someone hadkilled and set them on fire. Saying this Ramanand left for his home.Thereafter, Pratap and Shambhu reached the place of Ramanandon bicycle and I reached walking. When I reached the house ofRamanand, Pratap and Shambhu were dousing the fire at the housewith water. Ramanand was warming his body sitting over here andvillagers were standing outside. The clothes of Ramanand weresoaked with blood. The Inspector reached sometime thereafter.Thereafter, I, Shambhu and Pratap went with the inspector to thepolice station in jeep. It took half an hour for the inspector toarrive at the spot. It was about 8-9 o’clock in the morning the policeofficials took Ramanand to the police station before us.”

79. Thus, it is very difficult for us to believe that the accusedappellant could have made extra judicial confession on 23.01.2010 beforethe 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 theinvestigating officer has deliberately shown arrest of accused appellanton 24.01.2010 and that too from place like bus stand. As discussedabove, the accused appellant was arrested and taken in custody in themorning of 22.01.2010 itself. One Police Constable along with policeyadi had taken the accused appellant to the hospital in the morningitself for medical examination. Only with view to show that between22.01.2010 and 24.01.2010 the accused appellant made extra judicial

Aconfession before two witnesses, the investigating officer has shownarrest of the accused appellant on 24.01.2010 which is just unbelievable.

80. Confessions may be divided into two classes, i.e. judicial andextra judicial. Judicial confessions are those which are made beforeMagistrate or Court in the course of judicial proceedings. Extra judicialBconfessions are those which are made by the party elsewhere than beforea Magistrate or Court. Extra judicial confessions are generally thosemade by party to or before private individual which includes even ajudicial officer in his private capacity. It also includes Magistrate whois not especially empowered to record confessions under Section 164 ofthe CrPC or Magistrate so empowered but receiving the confession atCa stage when Section 164 does not apply. As to extra judicial confessions,two questions arise: (i) were they made voluntarily? And (ii) are theytrue? As the Section enacts, confession made by an accused person isirrelevant in criminal proceedings, if the making of the confessionappears to the Court to have been caused by any inducement, threat orDpromise, (1) having reference to the charge against the accused person,(2) proceeding from person in authority, and (3) sufficient, in the opinionof the Court to give the accused person grounds which would appear tohim reasonable for supposing that by making it he would gain anyadvantage or avoid any evil of temporal nature in reference to theproceedings against him. It follows that confession would be voluntaryEif it is made by the accused in fit state of mind, and if it is not caused byany inducement, threat or promise which has reference to the chargeagainst him, proceeding from person in authority. It would not beinvoluntary, if the inducement, (a) does not have reference to the chargeagainst the accused person, or (b) it does not proceed from person inFauthority; or (c) it is not sufficient, in the opinion of the Court to give theaccused person grounds which would appear to him reasonable forsupposing that, by making it, he would gain any advantage or avoid anyevil of temporal nature in reference to the proceedings against him.Whether or not the confession was voluntary would depend upon thefacts and circumstances of each case, judged in the light of Section 24Gof the Evidence Act. The law is clear that confession cannot be usedagainst an accused person unless the Court is satisfied that it wasvoluntary and at that stage the question whether it is true or false doesnot arise. If the facts and circumstances surrounding the making of aconfession appear to cast doubt on the veracity or voluntariness of theHconfession, the Court may refuse to act upon the confession, even if it isadmissible in evidence. One important question, in regard to which theCourt has to be satisfied with is, whether when the accused madeconfession, he was free man or his movements were controlled by thepolice either by themselves or through some other agency employed bythem for the purpose of securing such confession. The question whethera confession is voluntary or not is always question of fact. All thefactors and all the circumstances of the case, including the importantfactors at the time given for reflection, scope of the accused getting afeeling of threat, inducement or promise, must be considered beforedeciding whether the Court is satisfied that its opinion, the impressioncaused by the inducement, threat or promise, if any, has been fullyremoved. 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 aman would be induced to make free and voluntary confession of guilt,so contrary to the feelings and principles of human nature, if the factsconfessed were not true. Deliberate and voluntary confessions of guilt,if clearly proved, are among the most effectual proofs in law. Aninvoluntary confession is one which is not the result of the free will ofthe maker of it. So, where the statement is made as result of theharassment and continuous interrogation for several hours after the personis treated as an offender and accused, such statement must be regardedas involuntary. The inducement may take the form of promise or ofthreat, and often the inducement involves both promise and threat, apromise of forgiveness if disclosure is made and threat of prosecution ifit is not. (See Woodroffe Evidence, 9th Edn. Page 284). promise isalways attached to the confession, alternative while threat is alwaysattached to the silence-alternative; thus, in the one case the prisoner ismeasuring the net advantage of the promise, minus the generalundesirability of false confession, as against the present unsatisfactorysituation; while in the other case he is measuring the net advantages ofthe present satisfactory situation, minus the general undesirability of theconfession against the threatened harm. It must be borne in mind thatevery inducement, threat or promise does not vitiate confession. Sincethe object of the rule is to exclude only those confessions which aretestimonially untrustworthy, the inducement, threat or promise must besuch as is calculated to lead to an untrue confession. On the aforesaidanalysis the Court is to determine the absence or presence of inducement,promise etc. or its sufficiency and how or in what measure it worked on

Athe mind of the accused. If the inducement, promise or threat is sufficientin the opinion of the Court, to give the accused person grounds whichwould appear to him reasonable for supposing that by making it he wouldgain any advantage or avoid any evil, it is enough to exclude theconfession. The words ‘appear to him’ in the last part of the sectionrefer to the mentality of the accused. (See State of Rajasthan v. RajaBRam, (2003) 8 SCC 180)

81. An extra judicial confession, if voluntary and true and madein fit state of mind, can be relied upon by the Court. The confessionwill have to be proved like any other fact. The value of the evidence asto confession, like any other evidence, depends upon the veracity of theCwitness to whom it has been made. The value of the evidence as to theconfession depends on the reliability of the witness who gives the evidence.It is not open to any Court to start with presumption that extra judicialconfession is weak type of evidence. It would depend on the nature ofthe circumstances, the time when the confession was made and theDcredibility of the witnesses who speak to such confession. Such aconfession can be relied upon and conviction can be founded thereon ifthe evidence about the confession comes from the mouth of witnesseswho appear to be unbiased, not even remotely inimical to the accused,and in respect of whom nothing is brought out which may tend to indicatethat he may have motive for attributing an untruthful statement to theEaccused, the words spoken to by the witness are clear, unambiguousand unmistakably convey that the accused is the perpetrator of the crimeand nothing is omitted by the witness which may militate against it. Aftersubjecting the evidence of the witness to rigorous test on the touchstoneof credibility, the extra judicial confession can be accepted and can beFthe basis of conviction if it passes the test of credibility.

82. Extra judicial confession is weak piece of evidence and thecourt must ensure that the same inspires confidence and is corroboratedby other prosecution evidence. It is considered to be weak piece ofevidence as it can be easily procured whenever direct evidence is notGavailable. In order to accept extra judicial confession, it must be voluntaryand must inspire confidence. If the court is satisfied that the extra judicialconfession is voluntary, it can be acted upon to base the conviction.

83. Considering the admissibility and evidentiary value of extrajudicial confession, after referring to various judgments, inSahadevan

and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court heldas under:-

“15.1. In Balwinder Singh v. State of Punjab [1995Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated theprinciple that: (SCC p. 265, para 10)

“10. An extra-judicial confession by its very nature isratheraweaktypeofevidenceandrequires appreciationwithagreatdealofcareandcaution.Whereanextra-judicialconfessionissurroundedby suspiciouscircumstances,itscredibilitybecomes doubtfulanditloses”itsimportance.

x x x x

15.4. While explaining the dimensions of the principlesgoverning the admissibility and evidentiary value of anextra-judicial confession, this Court in State of Rajasthan v.Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] statedthe principle that: (SCC p. 192, para 19)

“19. An extra-judicial confession, if voluntary and trueand made in fit state of mind, can be relied upon by thecourt. The confession will have to be proved like any otherfact. The value of the evidence as to confession, like anyother evidence, depends upon the veracity of the witnessto whom it has been made.”

The Court further expressed the view that: (SCC p. 192, para19)

“19. … Such confession can be relied upon and convictioncan be founded thereon if the evidence about the confessioncomes from the mouth of witnesses who appear to beunbiased, not even remotely inimical to the accused, andin respect of whom nothing is brought out which may tendto indicate that he may have motive of attributing anuntruthful statement to the accused.…”

x x x x

15.6. Accepting the admissibility of the extra-judicialconfession, the Court in Sansar Chand v. State of Rajasthan

A[(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that: (SCCp. 611, paras 29-30)

“29. There is no absolute rule that an extra-judicialconfession can never be the basis of conviction, althoughordinarily an extra-judicial confession should beBcorroborated by some other material. [Vide Thimma andThimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970SCC (Cri) 320], Mulk Raj v. State of U.P. [AIR 1959 SC902 : 1959 Cri LJ 1219], Sivakumar v. State [(2006) 1SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and41 : AIR paras 41 and 42), Shiva Karam Payaswami TewariCv. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008)15 SCC 449 : (2009) 3 SCC (Cri) 1082]]””

[Emphasis supplied]

D84. It is well settled that conviction can be based on voluntarilyconfession but the rule of prudence requires that wherever possible itshould be corroborated by independent evidence. Extra judicial confessionof accused need not in all cases be corroborated. InMadan GopalKakkad v. Naval Dubey and Another, (1992) 3 SCC 204, this Courtafter referring to Piara Singh and Others v. State of Punjab, (1977) 4ESCC 452, held that the law does not require that the evidence of anextra judicial confession should in all cases be corroborated. The ruleof prudence does not require that each and every circumstance mentionedin the confession must be separately and independently corroborated.

85. The sum and substance of the aforesaid is that an extra judicialFconfession by its very nature is rather weak type of evidence andrequires appreciation with great deal of care and caution. Where anextra judicial confession is surrounded by suspicious circumstances, itscredibility becomes doubtful and it loses its importance like the case inhand. The Courts generally look for an independent reliable corroborationGbefore placing any reliance upon an extra judicial confession.

MOTIVE

86. The Courts below have relied upon the strong motive for theaccused appellant to commit the crime as one of the incriminatingcircumstances. It is the case of the prosecution that the accused appellantHdesperately wanted to get married to Manju. Manju herself at the

relevant point of time was married lady. It appears from the evidenceon record that the accused appellant had even got engaged with Manjuduring the subsistence of his marriage with the deceased Sangeeta. Italso appears that the engagement ceremony was celebrated with pompand show. However, before the accused appellant could get married toManju, he got arrested in one offence under Section 307 of the IPC.According to the prosecution thereafter, although the accused appellanttried his best to get married to Manju, more particularly, after beingreleased on bail yet as there was lot of opposition at the end of his wifedeceased Sangeeta, he was not able to marry her. In such circumstances,it is the case of the prosecution that the accused appellant decided toterminate his wife Sangeeta as well his four minor daughters on thefateful night of the incident.87. It is settled principle of criminal jurisprudence that in casebased on circumstantial evidence, motive for committing the crime onthe part of the accused assumes greater importance. This Court in variousdecisions has laid down the principles holding that motive for commissionof offence no doubt assumes greater importance in cases resting oncircumstantial evidence than those in which direct evidence regardingcommission of offence is available. It is equally true that failure to provemotive 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 ofmotive could be missing link of incriminating circumstances, but oncethe prosecution has established the other incriminating circumstances toits entirety, absence of motive will not give any benefit to the accused.

88. Having regard to the nature of the evidence on record, there issomething to indicate that the accused appellant had illicit relationshipwith Manju and wanted to settle in life marrying Manju. As noted above,in the past accused appellant had got engaged with Manju and was onthe verge of getting married. At the relevant point of time when theaccused appellant got engaged with Manju, it appears that one and allincluding the deceased Sangeeta were consenting parties. There is nothingon record to indicate that at the time of engagement of accused appellantwith Manju, the deceased Sangeeta had raised hue and cry or had opposedsuch decision of her husband. Of course, this is something which isvery personal. If at all we believe the illicit relationship of the accusedappellant with Manju, then it is possible that the deceased Sangeeta mightbe an absolutely helpless lady and could not have done anything in that

Aregard. However, the moot question is should this motive by alone beheld sufficient to convict the accused appellant for the alleged crime andsentence him to death.

89. In the case of Sampath Kumar v. Inspector of PoliceKrishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court heldBas under:

“29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC(Cri) Supp 85] the prosecution case was based entirely uponcircumstantial evidence and motive. Having discussed thecircumstances relied upon by the prosecution, this CourtCrejected the motive which was the only remaining circumstancerelied upon by the prosecution stating that the presence of amotive was not enough for supporting conviction, for it iswell settled that the chain of circumstances should be such asto lead to an irresistible conclusion, that is incompatible withthe innocence of the accused.

30. To the same effect is the decision of this Court in SantoshKumar Singh v. State [(2010) 9 SCC 747 : (2010) 3 SCC (Cri)1469] and Rukia Begum v. State of Karnataka [(2011) 4 SCC779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585] wherethisCourtheldthatmotive alone in the absence of any otherEcircumstantial evidence wouldnotbesufficienttoconvicttheappellant. Reference may also be made to the decision of thisCourt in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 :(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Courtexplained the legal position as follows: (Sunil Rai case [(2011)F12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] ,SCC p. 266, paras 31-32)

“31. … In any event, motive alone can hardly be aground for conviction.

32. On the materials on record, there may be somesuspicion against the accused, but as is often said, suspicion,howsoever strong, cannot take the place of proof.”

31. Suffice it to say although, according to the appellants thequestion of the appellant Velu having the motive to harm thedeceased Senthil for falling in love with his sister, Usha didnot survive once the family had decided to offer Usha in

matrimony to the deceased Senthil. Yet evenassumingthattheappellantVeluhadnotreconciledtotheideaofUshagettingmarriedtothedeceasedSenthil,allthatcanbesaidwasthattheappellant Velu had motive for physically harmingthedeceased. That may be an important circumstance in acasebasedoncircumstantialevidencebutcannottaketheplace of conclusive proof that the person concernedwas theauthor of the crime. One could even say that thepresence ofmotive in the facts and circumstances of thecase creates astrong suspicion against the appellant butsuspicion,howsoever strong, also cannot be substitutefor proof ofthe guilt of the accused beyond reasonabledoubt.”

[Emphasis supplied]

90. Thus, even if it is believed that the accused appellant had amotive to commit the crime, the same may be an important circumstancein case based on circumstantial evidence but cannot take the place asa conclusive proof that the person concerned was the author of thecrime. One could even say that the presence of motive in the facts andcircumstances of the case creates strong suspicion against the accusedappellant but suspicion, howsoever strong, cannot be substitute forproof of the guilt of the accused beyond reasonable doubt.

91. The fact that we have ruled out the circumstances relating tothe making of an extra judicial confession and the discovery of the weaponof offence as not having been established, the chain of circumstantialevidence snaps so badly that to consider any other circumstance, evenlike motive, would not be necessary.

FALSEEXPLANATIONOFFEREDBYTHEACCUSEDAPPELLANT ASANADDITIONALLINK

92. It is the case of the prosecution all throughout that the accusedappellant offered false explanation in his defence. To put it in other words,according to the courts below the say of the accused appellant that onthe fateful night of the incident four unidentified persons killed his wifeand daughters mercilessly and thereafter, set their dead bodies on firestood falsified, in view of the incriminating circumstances pointingtowards the guilt of the accused. According to the trial court and theHigh Court, the explanation offered by the accused appellant in regard tothe injuries suffered by him on his head is established to be false. In such

Acircumstances, both the courts took the view that the false explanationoffered by the accused appellant is an additional link in the chain ofcircumstances.

93. It appears from the materials on record that in all, three furtherstatements of the accused appellant were recorded by the trial courtBunder Section 313 of the CrPC. This is one another unusual feature ofthis matter. Ordinarily and more particularly having regard to the languageof Section 313 of the CrPC, the further statement of an accused is to berecorded once the prosecution closes its evidence and before the accusedenters his defence. In the case on hand, it appears that on 19.07.2013, inall eight prosecution witnesses were examined. At the end of the day,Cthe trial court recorded the further statement of the accused appellant.The Question No. 12 reads thus:

“Question 12: - Do you want to submit anything else?

Answer: - Manua alias Ramakant, Kamlkant and RamakantDhad killed my elder brother Siyaram, & for that I had lodgedF.I.R. My wife Sangita and Siyaram’s daughter Gudiya werethe eye witnesses of this case. The accused persons, withintention to erase evidence, had assaulted me and my wifeSangita, and burnt her by pouring kerosene oil. They wanted tokill me too. That’s why they poured kerosene oil on me asEwell. The daughter of Siyaram died of sickness. This incidenthad been caused by Ramakant, Kamlakant and Ramakant.”

94. On 14.11.2013, the second further statement of the accusedappellant was recorded by the trial court wherein the Question No. 8reads thus:F“

“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 accusedappellant came to be recorded by the trial court wherein the QuestionGNo. 4 reads thus:

“Question 4:- Do you want to submit anything else?

Answer:- I and my brother Siyaram were living at villageBasadiya, Police Station- Dhaurhara. The brahmins ofBasadiya had committed murder of my brother Siyaram. I wasH

complainant in that case. Due to their fear, I started living atNaamdar Purwa. My wife and the daughter of Siyaram werewitnesses of his murder. His daughter had died. The accusedpersons of the murder of Siyaram had killed my wife and familyfor erasing the evidence. They intended to kill me as well dueto which I sustained injuries.”

96. It is well settled that the prosecution must stand or fall on itsown legs and it cannot derive any strength from the weakness of thedefence. Where various links in chain are in themselves complete,then false plea or false defence may be called into aid only to lendassurance to the Court. In other words, before using the additional link itmust be proved that all the links in the chain are complete and do notsuffer from any infirmity. It is not the law where there is any infirmity orlacunae in the prosecution case, the same could be cured or suppliedby false defence or false plea which is not accepted by Court.

97. Before false explanation can be used as an additional link,the following essential conditions must be satisfied:

(i) Various links in the chain of evidence led by the prosecutionhave been satisfactorily proved.

(ii) Such circumstances points to the guilt of the accused asreasonable defence.

(iii) The circumstance is in proximity to the time and situation.

98. If the aforesaid conditions are fulfilled only then Court usea false explanation or false defence as an additional link to lend asassurance to the Court and not otherwise. [see Sharad BiridhichandSarda v. State of Maharashtra, AIR (1984) SC 1622]

99. It is sufficient if the accused person succeeds in proving apreponderance of probability in favour of his case. It is not necessaryfor the accused person to prove his case beyond reasonable doubt orin default to incur verdict of guilty. The onus of proof lying upon theaccused person is to prove his case by preponderance of probability.In the American Jurisprudence, 2nd Edition, Vol. 30, the expression“preponderance of evidence” has been defined in Article 1164. InAmerica the term means “the weight, credit and value of the aggregateevidence on either side, and is usually considered to be synonymouswith the term greater weight of the evidence”, or “greater weight of

Athe credible evidence”. It is phrase which, in the last analysis, meansprobability of the truth. To be satisfied, certain, or convinced is muchhigher test than the test of “preponderance of evidence”. The phrase“preponderance of probability” appears to have been taken fromCharles R. Cooper v. F. W. Slade, (1857-59) 6 HLC 746. Theobservations made therein make it clear that what “preponderance ofBprobability” means “more probable and rational view of the case”, notnecessarily as certain as the pleading should be.

100. Again, at the cost of repetition, we may state that it is notnecessary for us to go into the issue of false explanation, said to havebeen offered by the accused appellant as at the most false explanationCcan be used as an additional link in the chain of evidence led by theprosecution. This issue pales into insignificance as the various links inthe chain of evidence led by the prosecution having not been satisfactorilyproved.

101. The inalienable interface of presumption of innocence andDthe burden of proof in criminal case on the prosecution has beensuccinctly expounded in the following passage from the treatise “TheLaw of Evidence” fifth edition by Ian Dennis at page 445:

“The presumption of innocence states that person ispresumed to be innocent until proven guilty. In one sense thisEsimply restates in different language the rule that the burdenof proof in criminal case is on the prosecution to prove thedefendant’s guilt. As explained above, the burden of proofrule has number of functions, one of which is to provide arule of decision for the fact-finder in situation of uncertainty.FAnother function is to allocate the risk of mis- decision incriminal trials. Because the outcome of wrongful convictionis regarded as significantly worse harm than wrongfulacquittal the rule is constructed so as to minimise theriskoftheformer.Theburdenofovercominga presumptionthatthedefendantisinnocenttherefore requiresthestatetoprovetheGdefendant’sguilt.”

[Emphasis supplied]

102. The above quote thus seemingly concedes preference towrongful acquittal compared to the risk of wrongful conviction. Such is

the abiding jurisprudential concern to eschew even the remotest possibilityof unmerited conviction.

103. This applies with full force particularly in fact situations likethe one on hand where the charge is sought to be established bycircumstantial evidence. These enunciations are so well entrenched thatwe do not wish to burden the present narration by referring to the decisionsof this Court in this regard.

104. Addressing this aspect, however, is the following extract alsofrom the same treatise “The Law of Evidence” fifth edition by Ian Dennisat page 483:

“Where the case against the accused depends wholly or partlyon inferences from circumstantial evidence, fact-finders cannotlogically convict unless they are sure that inferences of guiltare the only ones that can reasonably be drawn. If they thinkthat there are possible innocent explanations for circumstantialevidence that are not “merely fanciful”, it must follow thatthere is reasonable doubt about guilt. There is no rule,however, that judges must direct juries in terms not to convictunless they are sure that the evidence bears no otherexplanation than guilt. It is sufficient to direct simply that theburden on the prosecution is to satisfy the jury beyondreasonable doubt, or so that they are sure.The very high standard of proof required in criminal casesminimisestheriskofawrongfulconviction. It means thatsomeone whom, on the evidence, the fact-finder believes is“probably” guilty, or “likely” to be guilty will be acquitted,since these judgments of probability necessarily admit thatthe fact-finder is not “sure”. It is generally accepted that someat least of these acquittals will be of persons who are in factguilty of the offences charged, and who would be convictedif the standard of proof were the lower civil standard of thebalance of probabilities. Such acquittals are the price paidfor thesafeguardprovidedbythe“beyondreasonabledoubt”standardagainstwrongfulconviction.”

[Emphasis supplied]

A105. We must remind ourselves of what this Court observed inthe case of Shankarlal Gyarasilal Dixit v. State of Maharashtrareported 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 positionBby saying that what the court has to consider is whether thecumulative effect of the circumstances establishes the guilt ofthe accused beyond the “shadow of doubt”. In the first place,“shadow of doubt”, even in cases which depend on directevidence is shadow of “reasonable” doubt. Secondly, in itspractical application, the test which requires the exclusion ofCother alternative hypotheses is far morerigorousthanthetestofproofbeyondreasonable doubt.”

[Emphasis supplied]

INJURIESONTHEBODYAPPELLANTD

OFTHEACCUSED

106. It appears from the materials on record that the accusedappellant was forwarded to the Community Health Centre (CHC)Dhaurhara, accompanied by the police constable Brij Mohan Singh forthe purpose of medical examination on the date of the incident itself, i.e.,E22.01.2010. PW-9, Dr. Ankit Kumar Singh had examined the accusedappellant and in the medical certificate issued by him Exh. 44, he notedfive injuries in or around the head and the neck region. The first threeinjuries noted are in the form of lacerated wounds, whereas the othertwo injuries as superfluous burn injuries. It was argued before us by thelearned counsel appearing for the State that the injuries found on theFbody of the accused appellant points towards his complicity in the crime.It was also sought to be argued that the explanation offered by theaccused appellant in regard to the injuries suffered by him is falsified bythe circumstantial evidence on record. On the other hand, the defencealso argued that the non-explanation of the injuries suffered by the accusedGappellant at the end of the prosecution is fatal. Thus, both the sides wantto make the most of the injuries which were found on the body of theaccused appellant.

107. We are of the view that both the sides are wrong in theirown way. The settled law is that if there are serious injuries or grievousinjuries found on the body of the accused then the prosecution owes aH

duty to explain such injuries and the failure on the part of the prosecutionto explain may point towards the innocence of the accused. At the sametime, the well-settled law is that if the injuries are superfluous or minor innature then the prosecution need not explain such injuries. In the case onhand, the accused appellant has offered some explanation which couldbe said to be compatible with the defence he has put forward. Asexplained earlier, the accused has to establish his defence onpreponderance of probability and not beyond reasonable doubt. Theaccused in his statement recorded under Section 313 of the CrPC hassaid that he suffered the head injuries as one of the assailants out of thefour had hit him on his head with the butt of the gun. PW-9, Dr. AnkitKumar Singh in his evidence has said that the injurie Nos. 1, 2 and 3resply could have been caused by the butt of the gun. PW-9, Dr. AnkitKumar Singh has not said that the injuries suffered by the accusedappellant were self-inflicted injuries.108. The prosecution wants us to accept the other side of thestory. What the prosecution wants to convey is that the accused appellantsuffered the injuries while committing the crime. This is suggestive ofthe fact that the accused appellant might have suffered the injuries onlyif one of the deceased persons had retaliated in defence at the time ofthe assault. Such is not even the case of the prosecution. We rule out thistheory of counter defence at the end of any of the deceased personsbecause out of five deceased persons four were minor children.

109. If anyone could have offered any resistance, then it couldhave been the deceased Sangeeta. However, having regard to the natureof the injuries suffered by the deceased Sangeeta, it is difficult to evensay that she might have realised for even second as to what washappening.

110. We see it from different perspective. For the time being,we proceed on the footing or the assumption that the accused appellantwanted to do away with his wife and children. We fail to understandwhat could be the good reason for the accused appellant after theassault to cut the bodies into pieces. We find some merit in the submissionof Mr. S. Niranjan Reddy, the learned senior counsel for the accusedappellant that it could be sign of grave warning from the other sidewho belong to the upper-caste (Brahmins) as to how revengeful andvenomous they could be.

A111. In Dhananjay Shanker Shetty v. State of Maharashtra,(2002) 6 SCC 596, in paragraph 10 in reference to the circumstantialevidence, in the case of murder, the non-explanation of injuries onaccused by prosecution was held to be significant when there arecircumstances which makes prosecution case doubtful. For the relevantpurpose, the relevant extract of paragraph 10 is extracted as below:B

“10. ....But non-explanation of injuries assumes significancewhentherearematerialcircumstanceswhichmaketheprosecution case doubtful. Reference in this connection maybe made to recent decisions of this Court in the cases ofTakhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6CSCC 145 : 2001 SCC (Cri) 1070] and Kashiram v. State ofM.P. [(2002) 1 SCC 71 : 2002 SCC (Cri) 68]. In the presentcase,non-explanationofinjuriesontheappellantbytheprosecution assumes significance as there are circumstanceswhichmaketheprosecution case, showing thecomplicityofDtheappellantwiththecrime,highly doubtful.”

[Emphasis supplied]

112. In Mohar Rai and Bharath Rai v. State of Bihar, AIR1968 SC 1281, it was observed:

“6. …..In our judgment the failure of the prosecution to offerEany explanation in that regard shows that evidence of theprosecution witnesses relating to the incident is not true orat any rate not wholly true. Furtherthoseinjuries probabilise”thepleatakenbytheappellants.

[Emphasis supplied]

113. In another important case Lakshmi Singh and Others v.State of Bihar, (1976) 4 SCC 394, after referring to the ratio laid down inMohar Rai (supra), this Court observed:

“12. …..where the prosecution fails to explain the injuries onthe accused, two results follow: (1) that the evidence of theGprosecution witnesses is untrue; and (2) that the injuriesprobabilise the plea taken by the appellants…..”

114. It was further observed that:

“12. …..in murder case, the non-explanation of the injuriessustained by the accused at about the time of the occurrence

or in the course of altercation is very important circumstancefrom which the court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and theorigin of the occurrence and has thus not presented the trueversion;

(2) that the witnesses who have denied the presence of theinjuries on the person of the accused are lying on mostmaterial point and therefore their evidence is unreliable;

(3) that in case there is defence version which explains theinjuries on the person of the accused it is rendered probableso as to throw doubt on the prosecution case…..”

115. In Mohar Rai (supra) it is made clear that failure of theprosecution to offer any explanation regarding the injuries found on theaccused 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 isobserved that any non-explanation of the injuries on the accused by theprosecution may affect the prosecution case. But such non-explanationmay assume greater importance where the defence gives versionwhich competes in probability with that of the prosecution. But wherethe evidence is clear, cogent and creditworthy and where the court candistinguish the truth from falsehood, the mere fact that the injuries arenot explained by the prosecution cannot itself be sole basis to rejectsuch evidence, and consequently the whole case. Much depends on thefacts and circumstances of each case. These aspects were highlightedby this Court in Vijay Singh and Ors. v. State of U.P., (1990) CriLJ1510.

CONCLUSION

116. Thus, none of the pieces of evidence relied on as incriminatingby the courts below, can be treated as incriminating pieces ofcircumstantial evidence against the accused. Realities or truth apart, thefundamental and basic presumption in the administration of criminal lawand justice delivery system is the innocence of the alleged accused andtill the charges are proved beyond reasonable doubt on the basis of clear,cogent, credible or unimpeachable evidence, the question of indicting orpunishing an accused does not arise, merely carried away by heinousnature of the crime or the gruesome manner in which it was found tohave been committed. Though the offence is gruesome and revolts the

Ahuman conscience but an accused can be convicted only on legal evidenceand if only chain of circumstantial evidence has been so forged as torule out the possibility of any other reasonable hypothesis excepting theguilt of the accused. In Shankarlal Gyarasilal (supra), this Courtcautioned - “human natureistoowilling,whenfacedwithbrutalcrimes,tospinstoriesout ofstrongsuspicions”. This Court has heldBtime and again that between “may be true” and “must be true” there isa long distance to travel which must be covered by clear, cogent andunimpeachable evidence by the prosecution before an accused iscondemned convict. [See Ashish Batham v. State of M.P., (2002) 7SCC 31].C117. Before parting with the case, we would like to place on recordan observation of ours, touching an important aspect of the case. Withoutany hesitation and with disappointment, we state that the case on hand isone of most perfunctory investigation. It appears that the accused hereinwas provided with legal aid. He might not have been able to afford

Dgood and experienced trial side lawyer to defend himself. We have noticedthat the cross-examination of each and every witness is below average.Questions, which the defence counsel was not supposed to put to theprosecution witnesses were put without realising or understanding thelegal implications of the answers to such questions, more particularly,when they were not necessary. The defence counsel remained obliviousEof the position of law that suggestions made to the witnesses by thedefence the answers to those are binding to the accused.118. Any defence counsel with reasonable standing at the Baris expected to know that cross-examination is not the only method ofdiscrediting witness. If the oral testimony of certain witnesses isFcontrary to the proved facts and if their testimony is on the face of itunacceptable, their evidence might well be discarded on that groundalone.

119. It is by far now well-settled for legal proposition that it isthe duty of the court to see and ensure that an accused put on criminalGtrial is effectively represented by defence counsel, and in the eventon account of indigence, poverty or illiteracy or any other disabling factor,he is not able to engage counsel of his choice, it becomes the duty ofthe court to provide him appropriate and meaningful legal aid at theState expense. What is meant by the duty of the State to ensure fairHdefence to an accused is not the employment of defence counsel for

namesake. It has to be the provision of counsel who defends the accuseddiligently to the best of his abilities. While the quality of the defence orthe caliber of the counsel would not militate against the guarantee to afair trial sanctioned by Articles 21 and 22 resply of the Constitution, athreshold level of competence and due diligence in the discharge of hisduties as defence counsel would certainly be the constitutionalguaranteed expectation. The presence of counsel on record meanseffective, genuine and faithful presence and not mere farcical, shamor virtual presence that is illusory, if not fraudulent.

120. Article 39A of the Constitution speaks about free legal aidwhich reads thus:

“39A. Equal justice and free legal aid.—The State shall securethat the operation of the legal system promotes justice, on abasis of equal opportunity, and shall, in particular, providefree legal aid, by suitable legislation or schemes or in anyother way, to ensure that opportunities for securing justiceare not denied to any citizen by reason of economic or otherdisabilities.”

121. Section 304 of the CrPC refers to legal aid to the accused atState expenses in certain cases which reads thus:

“304. Legal aid to accused at State expense in certain cases.—(1)Where, in trial before the Court of Session, the accusedis not represented by pleader, and where it appears to theCourt that the accused has not sufficient means to engage apleader, the Court shall assign pleader for his defence atthe expense of the State.

(2) The High Court may, with the previous approval of theState Government, make rule providing for—

(a) the mode of selecting pleaders for defence under sub-section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fee payable to such pleaders by the Government,and generally, for carrying out the purposes of sub- section(1).

A(3) The State Government may, by notification, direct that, asfrom such date as may be specified in the notification theprovisions of sub-sections (1) and (2) shall apply in relationto any class of trials before other Courts in the State as theyapply in relation to trials before the Courts of Session.”

B122. Under Section 9 of the Legal Services Authorities Act, 1987,the District Legal Services Authorities are constituted for every Districtin the State to exercise powers and perform functions conferred on, orassigned to, the District Authority under the said Act.

123. This Court in para 13 of the judgment reported in KishoreCChand v. State of Himachal Pradesh, (1991) 1 SCC 286, held thus:

“13. Though Article 39-A of the Constitution providesfundamental rights to equal justice and free legal aid andthough the State provides amicus curiae to defend the indigentaccused, he would be meted out with unequal defence if, asDis common knowledge the youngster from the bar who haseither little experience or no experience is assigned to defendhim. It is high time that senior counsel practising in the courtconcerned, volunteer to defend such indigent accused as apart of their professional duty. If these remedial steps are takenand an honest and objective investigation is done, it willEenhance sense of confidence of the public in the investigatingagency.”

124. This Court, in the case of Zahira Habibullah Sheikh (5)and Another v. State of Gujarat and Others, reported in (2006) 3 SCC374, has observed in paragraphs 30, 35, 38 and 39 as under:F“

“30. Right from the inception of the judicial system it hasbeen accepted that discovery, vindication and establishmentof truth are the main purposes underlying existence of thecourts of justice. The operative principles for fair trialpermeate the common law in both civil and criminal contexts.GApplication of these principles involves delicate judicialbalancing of competing interests in criminal trial: the interestsof the accused and the public and to great extent that of thevictim have to be weighed not losing sight of the public interestinvolved in the prosecution of persons who commit offences.

x x x x

35. This Court has often emphasised that in criminal casethe fate of the proceedings cannot always be left entirely inthe hands of the parties, crime being public wrong in breachand violation of public rights and duties, which affects thewhole community as community and is harmful to the societyin general. The concept of fair trial entails familiartriangulation of interests of the accused, the victim and thesociety and it is the community that acts through the State andprosecuting agencies. Interest of society is not to be treatedcompletely with disdain and as persona non grata. The courtshave always been considered to have an overriding duty tomaintain public confidence in the administration ofjustice-often referred to as the duty to vindicate and upholdthe “majesty of the law”. Due administration of justice hasalways been viewed as continuous process, not confined todetermination of the particular case, protecting its ability tofunction as court of law in the future as in the case beforeit. If criminal court is to be an effective instrument indispensing justice, the Presiding Judge must cease to be aspectator and mere recording machine by becoming aparticipant in the trial evincing intelligence, active interestand elicit all relevant materials necessary for reaching thecorrect conclusion, to find out the truth, and administer justicewith fairness and impartiality both to the parties and to thecommunity it serves. The courts administering criminal justicecannot turn blind eye to vexatious or oppressive conductthat has occurred in relation to proceedings, even if fairtrial is still possible, except at the risk of undermining thefair name and standing of the judges as impartial andindependent adjudicators.

x x x x

38. Failure to accord fair hearing either to the accused orthe prosecution violates even minimum standards of dueprocess of law. It is inherent in the concept of due process oflaw, that condemnation should be rendered only after thetrial in which the hearing is real one, not sham or merefarce and pretence. Since the fair hearing requires anopportunity to preserve the process, it may be vitiated and

ABC

DEF

Aviolated by an over hasty stage-managed, tailored and partisantrial.

39. The fair trial for criminal offence consists not only intechnical observance of the frame, and forms of law, butalso in recognition and just application of its principles inBsubstance, to find out the truth and prevent miscarriage ofjustice.”

125. In Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3SCC 581, it is observed that, the Sessions Judge should view with sufficientseriousness the need to appoint State Counsel for undefended accusedCin grave cases. Indigence should never be ground for denying fair trialor equal justice. Therefore, particular attention should be paid to appointcompetent advocates, equal to handling the complex cases, not patronisinggestures to raw entrants to the Bar. Sufficient time and complete papersshould also be made available to the advocate chosen so that he mayserve the cause of justice with all the ability at his command, and theDaccused also may feel confident that his counsel chosen by the courthas had adequate time and material to defend him properly.

126. This case provides us an opportunity to remind the learnedDistrict and Sessions Judges across the country conducting sessionstrials, more particularly relating to serious offences involving severeEsentences, to appoint experienced lawyers who had conducted such casesin the past. It is desirable that in such cases senior advocate practising inthe trial court shall be requested to conduct the case himself or herselfon behalf of the undefended accused or at least provide good guidanceto the advocate who is appointed as amicus curiae or an advocate fromFthe legal aid panel to defend the case of the accused persons. Then onlythe effective and meaningful legal aid would be said to have been providedto the accused.

127. This Court, in the case of Madhav Hayawadanrao Hoskotv. State of Maharashtra, reported in (1978) 3 SCC 544, had emphasizedGupon the need of securing the competent and efficient legal services fora prisoner who is standing trial in criminal case or for the commissionof alleged offence. This Court, in paragraphs 14,15 and 18 of the abovejudgment, held as under:

“14. The other ingredient of fair procedure to prisoner, whohas to seek his liberation through the court process is lawyer’sH

services. Judicial justice, with procedural intricacies, legalsubmissions and critical examination of evidence, leans uponprofessional expertise; and failure of equal justice underthe law is on the cards where such supportive skill is absentfor one side. Our judicature, moulded by Anglo-Americanmodels and our judicial process, engineered by kindred legaltechnology, compel the collaboration of lawyer-power forsteering the wheels of equal justice under the law. Free legalservices to the needy is part of the English criminal justicesystem. And the American jurist, Prof. Vance of Yale, soundedsense for India too when he said:

What does it profit poor and ignorant man that heis equal to his strong antagonist before the law if there isno one to inform him what the law is? Or that the courtsare open to him on the same terms as to all other personswhen he has not the wherewithal to pay the admission fee?

15. Gideon’s trumpet has been heard across the Atlantic. Black,J. there observed:

Not only those precedents but also reason andreflection require us to recognise that in our adversarysystem of criminal justice, any person haled into court,who is too poor to hire lawyer, cannot be assured fairtrial unless counsel is provided for him. This seems to us tobe an obvious truth. Governments, both State and Federal,quite properly spend vast sums of money to establishmachinery to try defendants accused of crime. Lawyers toprosecute are everywhere deemed essential to protect thepublic’s interest in an orderly society. Similarly, there arefew defendants charged with crime who fail to hire thebest lawyers they can get to prepare and present theirdefences. That government hires lawyers to prosecute anddefendants who have the money hire lawyers to defend arethe strongest indications of the widespread belief thatlawyers in criminal courts are necessities, not luxuries. Theright of one charged with crime to counsel may not bedeemed fundamental and essential to fair trial in somecountries, but is in ours. From the very beginning, our stateand national constitutions and laws have laid great emphasis

on procedural and substantive safeguards designed toassure fair trials before impartial tribunals in which everydefendant stands equal before the law. This noble ideacannot be realised if the poor man charged with crime hasto face his accusers without lawyer to assist him.

x x x x

18. The American Bar Association has upheld the fundamentalpremise that counsel should be provided in the criminalproceedings for offences punishable by loss of liberty, exceptthose types of offences for which such punishment is not likelyCto be imposed. Thus, in America, strengthened by the Powell,Gideon and Hamlin cases, counsel for the accused in themore serious class of cases which threaten person withimprisonment is regarded as an essential component of theadministration of criminal justice and as part of proceduralfair-play. This is so without regard to the sixth amendmentDbecause lawyer participation is ordinarily an assurance thatdeprivation of liberty will not be in violation of procedureestablished by law. In short, it is the warp and woof of fairprocedure in sophisticated, legalistic system plus lay illiterateindigents aplenty. The Indian socio-legal milieu makes freeElegal service, at trial and higher levels, an imperativeprocessual piece of criminal justice where deprivation of life

or personal liberty hangs in the judicial balance.”

128. In the aforesaid context, we may refer to the National LegalServices Authority (Free and Competent Legal Services) Regulations,F2010, more particularly, the Regulation-15, which reads thus:

“15. Special engagement of senior advocates in appropriatecases.-

(1) If the Monitoring and Mentoring Committee or ExecutiveChairman or Chairman of the Legal Services Institution is ofGthe opinion that services of senior advocate, though notincluded in the approved panel of lawyers, has to be providedin any particular case the Legal Services Institution mayengage such senior advocate.

(2) Notwithstanding anything contained in the State regulations,Hthe Executive Chairman or Chairman of the Legal Services

Institution may decide the honorarium of such senioradvocate.”

129. This Court in Subhash Chand v. State of Rajasthanreported in (2002) 1 SCC 702 in para 26, while allowing the appeal andacquitting the accused appellant therein under Sections 302 and 376(2)(f)of the IPC, observed as under:

“26. Before parting with the case we would like to place onrecord, an observation of ours, touching an aspect of thecase. There are clueless crimes committed. Thefactumofacognizable crime having been committed is known but neithertheidentityoftheaccusedisdisclosednoristhereanyindicationavailableofthewitnesseswhowouldbeabletofurnishuseful andrelevantevidence. Suchoffencesput totestthewitsofaninvestigatingofficer.Avigilant investigatingofficer,well versed with the techniques of the job,isinapositiontocollectthethreadsofevidencefinding outthepathwhichleadstotheculprit.Theends,whichtheadministrationofcriminaljusticeserves,arenot achievedmerely by catching hold of the culprit. The accusation has tobeprovedtothehiltinacourtoflaw.Theevidenceoftheinvestigating officer given in the court should have rhythmexplainingstepbystephowtheinvestigationproceededleading to detection of the offender and collection of evidenceagainst him. This is necessary to exclude the likelihood ofanyinnocenthavingbeenpickedupandbrandedasaculpritandthenthegravityoftheoffencearousinghuman sympathypersuadingthemindtobecarriedawayby doubtfulordubiouscircumstancestreatingthemasof“beyonddoubt”evidentiaryvalue.”

[Emphasis supplied]

130. In the result, the appeals are allowed. The conviction of theaccused appellant under Section 302 of the IPC is set aside. He is acquittedof the charge framed against him. He shall be set at liberty forthwith ifnot required to be detained in connection with any other offences.

131. Pending application, if any, also stands disposed of.