State of U.P. Vs. Babu Ram [2000] INSC
216 (11 April 2000)
K.T. THOMAS & Y.K. SABHARWAL
THOMAS, J.
L.I.T.J Whoever was the assailant it was a
hatrick for him when three persons of the same house were slaughtered in one
operation. If respondent was the assailant it was a case of
patricide-cum-matricide-cum-fratricide. In the realm of homicidal crimes such
episodes rarely happen. So the task is heavy for the prosecution to carry
conviction of the truth of the allegation against the respondent. That perhaps
may be the factor which influenced the High Court in giving benefit of doubt to
this respondent.
Babu Ram - the respondent was found by the
trial court to have committed such a triple murder of his father, mother and
brother and buried the corpses inside their own courtyard. The Sessions Judge
chose the extreme penalty for him for the offence under Section 302 IPC. But he
got a clean chit from the High Court of Allahabad when a Division Bench
exonerated him of the offence. The State of U.P. now challenges the order of
acquittal in this appeal filed by special leave.
The victims of the triple slaughter were Devi
Dayal and his wife Champa Devi and their son Sitaram. The ill- fated parents
Devi Dayal and Champa Devi had 5 children - 3 sons and 2 daughters. Respondent
Babu Ram was the eldest among the children and Sitaram was the second son. The
third among the sons - Radheshyam - was not living with the parents during the
tragic night. Two daughters of the parents were Tarawati and Chakrawati. Both
of them were married away and they were living with their husbands in their
respective nuptial homes. Devi Dayal and Champa Devi were living in their house
at Kuri Lawa, Barabanki. Babu Ram and his brother Sitaram were also staying
with them in the same house. The third son Radheyshyam used to live in the
house of his sister Chakrawati. Prosecution case is that Babu Ram was pestering
his parents to part with a portion of their landed property in his favour but
that demand was not acceded to. He, therefore, turned against his parents and
the wicked thought of eliminating them burgeoned in his mind in due course of
time. He nurtured it and it was on 25.11.1990 that he could accomplish his
plan.
According to the prosecution case the
respondent did the operation extermination with the help of 4 other companions
and killed not only his parents but the other remaining brother who was staying
with them. He buried the dead bodies in a pit on the verandah of his house and
covered the pit with red sand and straws, to make it appear differently.
The further case of the prosecution is that
respondent held out to all others concerned that his parents had gone to a
temple with his brother Sitaram on the previous day and that they did not
return yet. PW-1 Ram Saharey (brother of Devi Dayal) expressed doubt as to the
said version of the respondent. The same doubt was expressed by respondent's
sisters and brothers-in-law also. They therefore confronted the respondent with
some inconvenient queries and then the respondent had burst out and made a
shrift of the whole episode to his listeners. When he was asked to spot out the
place where the corpses were interred he moved to the spot and disinterred all
the three dead bodies.
Devi Dayal's brother (Ram Sarahey) went to
Mohammedpur Police Station and lodged a complaint at 11.30 A.M. and on its
basis an FIR was made. PW-5 Police Officer reached the house without much delay
and during interrogation of the respondent he knew about the concealment of two
spades of different lengths. They were recovered by the police.
The case was sought to be built up only on
the basis of circumstantial evidence. Prosecution presented the following
circumstances against the respondent: (1) Appellant and three murdered persons
were the only inmates of the house on the crucial night. All the deceased were
found absent in the house on 25.11.1990. (2) Appellant told the neighbours as
well as his kith and kin that all the 3 deceased persons had gone to attend the
festival in a particular temple. (3) later, when he was cornered, he told his
siblings that the 3 deceased were killed by him in association with 4 other
persons and the dead bodies were buried in a pit dug on the verandah. (4)
Respondent pointed out the spot wherefrom the dead bodies were disinterred.
(5) When PW-5 questioned the respondent he
told him about concealment of the spades and a bloodstained cloth.
If the prosecution was able to establish the
above circumstances with reliable evidence there is no scope for contending
that the cumulative effect of those circumstances would be insufficient to
point to the appellant as the culprit. So the task of the prosecution was to
establish such circumstances which are enumerated above. No doubt Pw-1 - Ram
Saharey who lodged the FIR turned hostile and so was PW-2 Ram Sumiran who was
cited to speak to an extra judicial confession. So their evidence became
unavailable to the prosecution. However, PW-6 (Tarawati - sister of the
respondent) and PW-7 (brother-in- law of the respondent) stuck to their
version, the substance of which is the following: On hearing the news about the
missing of all the three deceased from the house the two witnesses reached the
house along with the other remaining brother Radheyshyam (who was living with
PW-6 Tarawati then). When respondent Babu Ram was confronted with the query as
to how the deceased could have gone to attend the festival of the temple when
they had never gone to such a place earlier, he could not withstand such cross
questions and he wept bitterly, and thereafter he owned that the three were
murdered by him. Respondent then took those persons to the spot where the dead
bodies were buried and disinterred those bodies after removing mud and bundles
of rice crops heaped thereon.
Close to the above evidence is the testimony
of PW-5 the Station House Officer of the local police. What has come out
materially in his evidence is that the accused told the police that he had
concealed one Kudal (a small spade) and Fawara (a still larger spade) and
another vestment, and those articles were recovered by the police on being lead
to the spot where they were concealed.
The Sessions Judge found that the said items
of evidence were reliable but the Division Bench of the High Court expressed
reservation in acting on the evidence of the same persons. The premier reason
advanced by the Division Bench against the prosecution was the failure of the
prosecution to make out a strong motive. Learned judges have stated thus on
that aspect: "Existence of motive may not be very much material in a case
which is based on direct evidence as it may be argued that motive is hidden in
the heart and mind of the accused, and it would be difficult for the
prosecution in every case to extract the said motive and to bring the same on
record. However, in a case which is based on circumstantial evidence, motive
plays an important role and absence of motive would go a long way to weaken the
prosecution case......... In this case the accused has been charged for
committing murders of his parents and younger brother. The only whisper made in
this case on behalf of the prosecution was that the accused wanted his father
to give his share in the property but his father had told him that he would do
so after marriage of his daughters and the younger son. There is, however, no
convincing evidence on this point to hold that the accused wanted partition to
which his father did not agree." We are unable to concur with the legal
proposition adumbrated in the impugned judgment that motive may not be very
much material in cases depending on direct evidence whereas motive is material
only when the case depends upon circumstantial evidence. There is no legal
warrant for making such a hiatus in criminal cases as for the motive for
committing the crime. Motive is a relevant factor in all criminal cases whether
based on the testimony of eye witnesses or circumstantial evidence. The
question in this regard is whether a prosecution must fail because it failed to
prove the motive or even whether inability to prove motive would weaken the
prosecution to any perceptible limit. No doubt, if the prosecution proves the
existence of a motive it would be well and good for it, particularly in a case
depending on circumstantial evidence, for, such motive could then be counted as
one of the circumstances. However, it cannot be forgotten that it is generally
a difficult area for any prosecution to bring on record what was in the mind of
the respondent. Even if the Investigating Officer would have succeeded in knowing
it through interrogations that cannot be put in evidence by them due to the ban
imposed by law.
In this context we would reiterate what this
court has said about the value of motive evidence and the consequences of
prosecution failing to prove it, in Nathuni Yadav vs.State of Bihar {1998 (9)
SCC 238} and State of Himachal Pradesh vs. Jeet Singh {1999 (4 SCC 370}.
Following passage can be quoted from the latter decision:
"No doubt it is a sound principle to
remember that every criminal act was done with a motive but its corollary is
not that no criminal offence would have been committed if the prosecution has
failed to prove the precise motive of the accused to commit it. When the
prosecution succeeded in showing the possibility of some ire for the accused
towards the victim, the inability to further put on record the manner in which
such ire would have swelled up in the mind of the offender to such a degree as
to impel him to commit the offence cannot be construed as a fatal weakness of
the prosecution. It is almost an impossibility for the prosecution to unravel
the full dimension of the mental disposition of an offender towards the person
whom he offended." The present is not a case of complete dearth of motive.
Respondent himself said about the motive and
PW-6 confirmed it. Such a motive may appear to some persons as inadequate for
liquidating once own parents. But any rancour burgeoning in the mind of an
offender can foment wicked thoughts which may even flame up to flash point. So
we are unable to concur with the High Court's view that the motive factor has
weakened the prosecution case.
The Division Bench of the High Court
hesitated to place reliance on the circumstance relating to the disinterment of
three dead bodies from the verandah for which learned judges advanced the
following reasons: First is that in the site plan prepared by the Investigating
Officer he did not give particulars or details of that place. Second is that
the Investigating Officer did not mention about the amount of "mud and
morang" noticed near the pit. The third is he did not take into custody
the wooden planks or the mud from the said place. The last is he did not
indicate in the site plan that blood was found at that place nor did he take
the bloodstained earth there from. After highlighting the above lapses of the
Investigating Officer the Division Bench concluded thus: "These omissions
would, therefore, in our opinion clearly negative the theory set up by the
prosecution that three dead bodies were buried in the verandah of the house of
the accused. By examining the statements of these two witnesses, namely,
Tarawati and Shital Prasad, in the light of these circumstances, we would not
be able to persuade ourselves to accept the statements of these two witness
thought they are the sister and brother-in-law of the accused." The above
reasons of the Division Bench for dropping down such a sturdy circumstance
(disinterment of the three dead bodies at the instance of the respondent) are
flimsy and tenuous. It is apparent that the Division Bench had strained to
ferret out some fragile grounds for sidelining such a highly incriminating
circumstance. The very approach of the High Court in this regard does not merit
approval.
It is not possible to understand the
rationale of the reasoning that if an Investigating Officer did not instruct
the person who drew up the site plan to note down certain details that would
render the testimony of material witnesses unreliable.
Regarding the circumstance that respondent
had first tried to mislead the people by saying that the three deceased persons
had gone to attend the temple festival, the Division Bench commented that as
the said version was not believed by others as a probable version the
respondent too would not have chosen to give such a version to the witnesses.
An offender who attempts to mislead others
need not necessarily arm with a ready foolproof explanation to any
cross-question from his listeners. Quite often such offenders might try to
advance explanations which strike them momentarily when they are compelled to
explain incongruous aspects. If the explanation offered by the offender
appeared incredible to the listeners that is hardly a ground to conclude that
the offender would not have given such explanation. That apart, in this case it
is pertinent to point out that even when the respondent was examined by the
trial court under Section 313 of the Code of Criminal Procedure he has stated
that the three deceased had gone to the temple to participate in the festival.
If that was his own stand even at the last stage, what is the need for the High
Court to say that respondent would not have stated so to PW-6 and PW-7? The
High Court has chosen to sidestep another incriminating circumstance which is
based on Section 27 of the Evidence Act. On the strength of the statement made
by the respondent two spades and a bloodstained "sadari" were
recovered by the Investigating Officer. The reason advanced by the Division
Bench is the following:
"The Investigating Officer had come to
know that the accused had allegedly made extra judicial confession but for the
reasons best known to him he did not think it proper to interrogate the
accused, who was present throughout on the spot. The accused was interrogated
after midnight i.e. in the night of 25/26.11.90 and on the basis of this
statement the Investigating Officer had recovered the articles, mentioned
above. This conduct of the Investigating Officer creates grave doubt regarding
the genuineness of extra judicial confession as well as the statement leading to
the recovery of the articles." We are unable to appreciate the said
reasoning for dispelling the evidence which otherwise is a circumstance
positively inculpating the respondent. An Investigating Officer may have his
own reasons for not interrogating the accused as soon as he saw him. Court
cannot overlook the realities that Investigating Officer, who is otherwise a
police officer, has to attend to umpteen engagements and even in the
investigation of the particular case itself he may have to observe a number of
formalities, even it is assumed that he had only one case to investigate at
that time.
The High Court in reaching a conclusion in
favour of the accused took into account the post-mortem findings regarding the
condition of the stomach of the three deceased.
"According to the prosecution, murder
took place in the night before 11 P.M. The post-mortem reports indicated that
the stomachs of the three deceased were empty, large and small intestines
contained faecal matter and gases." According to the High Court, these
facts would go to indicate that "murder must have taken place in the very
early morning and not in the night." We bear in mind that prosecution has
fixed up the time of murder as 11 P.M. on surmises. Perhaps the actual time of
murder would have been later in the night or the last meals would have been
consumed by the deceased much earlier.
By any stretch of imagination, on the facts
of this case, absence of any food materials in the stomach cannot be counted as
a circumstance in favour of the assailant.
Shri N.P. Midha, learned counsel for the
respondent, submitted written submissions over and above the oral arguments
addressed by him. One of the contentions adverted to by the learned counsel is
pertaining to the evidence of the defence witness (DW-1 Moharam Ali). Counsel
contended that if the evidence of DW-1 Moharam Ali can be believed it is
sufficient to shake the basic structure of the prosecution evidence. Shri N.P.
Midha invited our attention to the following observations contained in the decision
of this Court in Dudh Nath Pandey vs. State of Uttar Pradesh {1981 (2) SCC
166}: "Defence witnesses are entitled to equal treatment with those of the
prosecution;
and courts ought to overcome their
traditional instinctive disbelief in defence witnesses".
We may quote the succeeding sentence also
from the said decision for the sake of completion of the observations of their
Lordships on that score. It is this: "Quite often they tell lies but so do
the prosecution witnesses." Depositions of witnesses, whether they are
examined on the prosecution side or defence side or as court witnesses, are
oral evidence in the case and hence the scrutiny thereof shall be without any
predilection or bias. No witness is entitled to get better treatment merely
because he was examined as a prosecution witness or even as a court witness. It
is judicial scrutiny which is warranted in respect of the depositions of all
witnesses for which different yardsticks cannot be prescribed as for those
different categories of witnesses.
In this case, DW-1 Moharam Ali claimed to
have gone to the house of the deceased on getting information about the
murders. He said that he found 3 dead bodies lying there but also saw the
police beating the accused. This evidence of DW1, even if believed, would not
affect the core of the prosecution case or its evidence. Nonetheless, we may
consider his evidence from other angles.
In cross-examination DW1 said that he did not
divulge what he saw to any police officer or to any other officer.
He further admitted that he was affected by
paralysis and could not move from one place to another on his own. The trial
court declined to place any reliance on his evidence and the High Court also
did not consider it worthy of credence. We also agree that the evidence of DW-1
could not inspire confidence in judicial mind. Hence the said evidence of DW1
does not affect the prosecution case at all.
The trial court rightly appreciated the
circumstances presented by the prosecution through the evidence and found them
reliable and on the basis of such circumstances reached the conclusion that the
respondent was responsible for the murder of his parents and brother. We have
no other option but to interfere with the unmerited acquittal passed by the
High Court. Hence we do so and restore the conviction passed by the trial
court. However, we do not impose the extreme penalty which was chosen by the
trial court. Hence the respondent is sentenced to imprisonment for life under
Section 302 of the IPC.
We direct the Sessions Judge, Barabanki, to
take necessary steps to get the respondent back into custody if he is not
already in jail.
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